iV  iW  <;5SU.,:UJL. 


r 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


/' 


\5\ 
lie 


CASES 


ON 


CRIMINAL  PROCEDURE 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 

WILLIAM  E.  MIKELL,  B.  S. 

PROFESSOR  OF  LAW  IN   THE  UNIVERSITY  OF  PENNSYLVANIA 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL  EDITOR 


ST.  PAUL 

WEST  PUBLISHING  COMPANY 

1910 


Copyright,  1910 

BY 

WEST  PUBLISHING  COMPANY 
(Mik.Cb.Pr.) 


T 
\9lO 


5 


To 

WILLIAM  DRAPER  LEWIS,  B.S.,  LL.B.,  Ph.D. 

who  during  many  years  of  close  association  has  been  a  constant  friend, 
a  helpful  critic,  and  an  inspiring  colleague 

(iii)* 


6710^8 


THE  AMERICAN  CASEBOOK 
SERIES 


For  years  past  the  science  of  law  has  been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely ;  but  the  system  is  faulty  and  must  pass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  than 
as  the  process.  If  we  forget  the  rule  we  cannot  solve  the  problem ;  if 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory; it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be  short,  is  at  be'st  a  summary,  and  a  summary  presup- 
poses previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it ;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operates 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  practical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  case  in  all  its  parts  develops  analysis, 
the  comparison  of   many  cases  establishes  a  general  principle,  and 

(v) 


VI  PREFACE. 

the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  training  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  ]\Iany  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


PREFACE.  Vll 

treated  to  afford  a  basis  for  comparison  and  discrimination ;  to  show 
tlie  development  of  the  law  of  the  particular  topic  under  discussion ; 
and  to  afford  the  mental  training-  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration:  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly :  principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically ;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England ;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America ;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sar)-  connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  some  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections ; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


VIU  PREFACE. 

If  it  be  granted  that  all,  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week ;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year ;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Insurance. 

Agency.  International  Law. 

Bills  and  Notes.  Jurisprudence. 

Carriers.  Mortgages. 

Contracts.  Partnership. 

Corporations.  Personal  Property,  including 

Constitutional  Law.  the  Law  of  Bailment. 

Criminal  Law.  -d     ,  -n  .      i  i«t  Year. 

Criminal  Procedure.  ^^^^  Property.  ]  m      ;; 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 

Evidence. 

International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trmsic  importance  in  our  system  of  law.  As  its  principles  are  simple 
m  comparison  with  municipal  law,  as  their  application  is  less  technical, 


PREFACE.  IX 

and  as  the  cases  are  generally  interesting,  it  is  tlionght  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
are  at  present  actively  engaged  in  the  preparation  of  the  various  case- 
books on  the  indicated  subjects: 

George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Lazv. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law 
School.    Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject, Torts. 

William  E.  Alikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Law  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Professor  of  Law,  Northwestern  University 
Law  School.    Subject,  IV ills  and  Administration. 

Floyd  R.  Alechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  Illinois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 
Subject,  Trusts. 

Charles  Thaddeus  Terry,  Professor  of  Law,  Columbia  University. 
Subject,  Contracts. 


X  PREFACE. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.  Sub- 
ject, Persons. 

Edwin  C.  Goddard,  Professor  of  Law,  University  of  ^lichigan.  Sub- 
ject, Agency. 

Howard  L.  Smith,  Professor  of  Law,  University  of  Wisconsin.  Sub- 
ject, Bills  and  Notes.    (Co-author  with  Wm.  Underhill  Aloore.) 

Wm.  Underhill  Moore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Bills  and  Notes.    (Co-author  with  Howard  L.  Smith.) 

Edward  S.  Thurston,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Subject,  Suretyship. 

Clarke  B.  Whittier,  Professor  of  Law,  University  of  Chicago.  Sub- 
ject, Pleading. 

Eugene  A.  Gilmore,  Professor  of  Law,  L'niversity  of  Wisconsin. 
Subject,  Partnership. 

Joshua  R.  Clark,  Jr.,  Assistant  Professor  of  Law,  George  Washington 
University.    Subject,  Mortgages. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.  Subject, 
Administrative  Lazv. 

Frederick  Green,  Professor  of  Law,  University  of  Illinois.  Subject, 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
sity.   Sfibject,  Conflict  of  Lazvs. 

William  C.  Dennis,  Professor  of  Law,  George  Washington  University. 
Subject,  Public  Corporations. 

James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity; formerly  Professor  of  Law,  Columbia  University,  New 
York  City.  Subjects,  International  Lazv;  General  Jurisprudence; 
Equity. 

James  Brown  Scott, 
Washington,  D.  C,  Julj-,  1910.  General  Editor. 

Following  are  the  books  of  the  Series  now  published,  or  in  press: 

Adiuinistrative  Law  Damages 

Bills  and  Notes  Partnership 

Carriers  Suretyship 

Conflict  of  Laws  Trusts 

Criminal  Law  Wills  and  Administration 

Criminal  Procedure 


TABLE  OF   CONTENTS 


CIlArTER  I. 
Section  Page 

Jurisdiction  1 


CIIArTi:il  II. 
Venuk  1-, 

CHAPTER  III. 

Prosecution. 

1.  Methods  of  Prosecution 29 

2.  Limitation  of  Prosecutions 30 

CHAPTER  IV. 

Arrest. 

1.  What  Constitutes  Arrest 4P, 

2.  Who  May  Arrest 4"! 

3.  Eights  and  Duties  of  Person  flaking  Arrest 50 

CHAPTER  V. 
Extradition    GO 

CHAPTER  \T. 
Proceedings  before  Magistrate 72 

CHAPTER  VII. 
Bail    70 

CHAPTER  VIII. 
Tue  Grand  Jury S5 

CHAPTER  IX. 

The  Indictment. 

1.     Form  and  Requisites  of  the  Indictment  in  General 03 

I.     The  Caption 93 

Mik.Cr.Pr,  (xi) 


Xll  TABLE    OF   CONTENTS. 

Section  Page 

II.    The  Statement  of  the  Offense 97 

III.     The   Conchision 104 

IV.     Duplicity l(t."> 

V.     Repugnancy   1 1 !  i 

VI.     Surplusage  114 


CHAPTER  X. 

The  Indictment— Continued. 

1.  Particular  Averments 118 

I.     Averment  of  Facts  and  Circumstances  Necess"ary  to  Constitute 

the  Offense 118 

II.     Averment  of  Time  and  Place  of  the  Offense 130 

III.     Description  of  Persons  Connected  with  the  Offense 14(> 

IV.     Description,  Ownership,  and  Value  of  Property 153 

V.     Averment  of  Words  and  Writings 158 

VI.     Averment  of  the  Degree  of  Defendant's  Connection  with  the 

Offense IGl 

2.  Joinder  of  Defendants 163 

3.  Joinder  of  Offenses 165 

4.  Amendments   167 


CHAPTER  XI. 

Areaignjient,  Pleas,  and  ^Motions. 

1.  Arraignment  and  Pleas  in  General 1 71 

2.  Nolle  Prosequi  and  Motion  to  Quash 181 

3.  Plea  of  Former  Jeopardy 185 

CHAPTER  XII. 

Trial. 

1.  Right  to  Trial  by  Jury 202 

2.  Qualiflcations  of  Jurors 212 

3.  Time  of  Trial 223 

4.  Presence  of  Defendant,  Judge.  Counsel,  and  Witnesses 230 

5.  Conduct  of  the  Trial 246 

6.  Respective  Provinces  of  Court  and  Jury 2(iS 

7.  Evidence 280 

8.  Variance • 318 

9.  Verdict    327 

CHAPTER  XIII. 

New  Trial 350 

CHAPTER  XIV. 

Arrest  of  Judgment 338 


TABLE    OF    CONTENTS.  Xiii 

CHAPTER  XV. 

Page 
Judgment,  Sentence,  an  d  Execution 36G 

CHAPTER  X^  I. 
Appeal,  Wkit  of  Error,  and  Certiokaiu 379 

CHAPTER  XVII. 

PUNISUMENT     398 

APPENDIX. 
Forms  of  Indictments 411 

* 


TABLE   OF    CASES 

[cases  cited  in  footnotes  ABE  INDICATED  BY  ITALICS.      WHERE  SMALL  CAPITALS 
AEE    USED,    THE   CASE    IS  REFERRED    TO   IN    THE   TEXTj 


Adams  v.  Teople 

Adams  v.  State 

Anonymous.. 52,  53,  80,  104.  105, 

138,  152.  103,  108, 

181,  188,  232, 

Banson  v.  Ossley 

Barnesciotta  v.  People 

Basye  v.  .State 

Beard  v.  State 

Bennet  v.  The  Hundred  of  Hart- 
ford     

Bejiley  v.    State 

BluJccr  V.  >Stafe  

Blodgett  V,  Bace 

Boone  v.  People 

liradliiugh   v.  Rcfiina 

Briinsden's  Case 

BuNN  V.  Croul 

Burden,  Ex  parte 

Burden  v.  State 

Burrell  v.  State 

Burrougb's    Case 

Byers  v.  Commonwealth 


Caiiipton  V.  State 

Carlisle  v.  State 

Cavitt  V.  State 

Champney's    Case 

Cliarge  to  the  Grand  Jury 

Choek  V.  State 

Coflin  V.  United  States... 
Collins  V.   State 

CoAf^rONWEALTU  V.  ADAMS. 

Commonwealth  v. 
Coiii))i()inrralth  v. 
Conniiouwealth  v. 
Commonwealth  v. 
Commonwealth  v. 
Commonwealth  v 
Commonwealth  v. 
Commonwealth  v. 
Commonwealth  v. 
Mik.Cb.Pr. 


Boynton     .... 

Brown    

Buckley 

Call 

Carey    4." 

CARRINCiTON.. 

Duffy 

Foster    

Fuller   


Page 

Commonwealth  v.   Gibson 328 

Commonwealth  v.  Green. .  . : 351 

Commonwealth  v.  Horsey 129 

Com inoi} Health  v.  Iloiii/lttoii 159 

Commonwealth  v.    Ingersoll 179 

Commonwealth  v.   Jailer  of  Alle- 
gheny County 227 

Commonwealth  v.    Jongrass 201 

Coinmonicealth  v.  Knapp 223 

Commonwealth  V.    Kunzmaini. .  . .       2 

Commonwealth  v.  MeManus 

Commonwealth   v.  Mead 

CommomccaUh.  v.  Minor 

Commonicealth  r.  Sutherland ... . 

Commonwealth  v.  Tobin 

Commonwealth  v.    Twitchell 

Commonicealth  v.  We7)ster. .  .223, 

Cotton  V.  State 

Cotton's  Case 

Custodes  V.  Tawny  &  Norwood..  . 


Page 
13 

238 
33(5, 
172, 

320 

101 
147 
313 
208 

259 
357 
208 

72 

88 
159 
224 
200 

348 
372 
103 
205 

304 

21 
220 
]93 

74 
2(;2 
2S5 
203 
ISO 
131 
155 
148 

.343    (J  off  net/  v.  People. 
:i39    Glidewell    v.    State. 
.i.iL'    (J raves  v.  People. 

40    Gray    v.    Commonwealth. 

70    Gresham  v.   State. 
109    Grosse  V.  State. 
(xv) 


Dacres'  Case 

Davis  V.  United  States. 

Devine  v.   State 

Driggers  v.  State 

Dunn  V.  People 


270 
87 
308 
194 
331 
107 
297 
284 
137 
104 

208 
298 
83 
308 
205 


En  son  v. 
lOvans  V. 


State. 

State. 


99 


Faulk  V.  State..  . 
Felton's  Case.  .  . . 
Filkins  v.  People. 
Fltzharris'  Case. 
Fulford  v.  State. 
Fults  V.  State..  . 
Fusse's  Case 


399 
.399 
:!21 
172 
114 
375 
1.52 


384 

348 

84 

351 

81 

43 


XVI 


TABLE   OF   CASES. 


Page 

Hack   V.   State 174 

Harebottle  v.  Plaeock 259 

Harman  v.   Jacob 128 

Harris  v.   State 297 

Haskins  v.  People 17 

Hatchett  v.  Commonwealtli 161 

Helm   V.   State 221 

Hepler  v.  State 75 

Hewitt  V.  State  2G 

Hope,    In    re OS 

Hopt  V.   People  of  the  Territory 

of  Utah 233 

Hornberger  v.  State 385 

Hoskins  v.  People  173 

Hume  V.  Ogle 110 

Hunter  v.  Commonwealth 333 

Hutchinson's  Case  ISG 

JefEes'  Case 231 

Joan  V.  Commonwealth ; .  384 

Johnson  v.  State 321 

Jones  v.  State 100 

Jones  &  Bever's  Case 186 

Kane  v.  Commonwealth 276 

Kemmler,   In  ke 401 

Kendal  &  Roe,  In  re 79 

Kidcl  V.  Territory 369 

Klein  v.  People 337 

Lacefleld  v.   State 363 

Legg's  Case 305 

Leigh  V.  Cole 57 

Lester  v.  State 219 

Lloyd's  Case 158 

Loan  Co.   v.   Mix 267 

Long  V.  State 319 

Long's    Case 379 

Longfelloto  v.  Htatc 331 

Lord  Dacres'  Case 208 

McCue  V.  Commonwealth 366 

McDonald  v.   State 382 

McKahan   v,    Baltimore   &    O.    R. 

Co.,    260 

Mackalley's  Case .50 

Mohr,    In  re 03 

Molett  V.  State 139 

Morey  v.   Commonwealth 197 

Murphy  v.  State 315 

Myers  v.  Commonwealth 142 

Odington  v.  Darby 167 

Padgett  V.   State 306 

Pearce  v.  State 126 


Page 
Peeples  v.  State 255 

People  V.  Bemis 372 

People  V.  Bennett 94 

People    V.    Blackman 244 

People  V.  Bogart 157 

People  V.  Buckley 228 

People  V.  Courtney 282 

Pe<jple  V.    Cullen 260 

People  V.  Davidson 333 

People  V.  Davis 184 

People  V.  Dohring 24(j 

People  V.   Flack 264 

People  V.  HclUng 200 

People  v.  Kerrigan 250 

People  v.  Lee  Yune  Chony 201 

People  V.   Linzey 265 

People  V.  McCoy 263 

People  V.  MeCurdy 263 

People  V.    Murray 248 

People  V.    Palmer 293 

People  V.    Potter 292 

People  V.  Priori 265 

People  V.  Rodley 160 

People  V.  Thorn    239 

People  ex  rel.  Bradley  v.   Sui>er- 
intendeut,  etc.,  of  Illinois  State 

Reformatory    405 

Prine  v.  Commonwealth 230 

Protector  v.  Lowr 121 

Railing  v.  Commonwealth 308 

Regina  v.  Biss    150 

Regina  v.  Burton    295 

Regina  v.  Clerk    121 

Regina  v.  Cox 120 

Regina  v.  Davis 151 

Regina  v.  Drake 159 

Regina  v.  Faderman 177 

Regina  v.  Gorbutt  318 

RegIna  v.  Gallears 120 

Regina  v.  Hind    312 

Regina  v.  Lonsdale 120 

Regina  v.  Nugent  44 

Regina  v.  Ridpath     80 

Regina  v.  Rogers    19 

Regina  v.  Russell    88 

Regina  v.  Tanner    231 

Regina  v.  Taylor    315 

Regina  v.  Tempi eman  232 

Respubliea   v.    Griffiths 33 

Rex  V.  128,  140 

liex  V.  Catterall    367 

Rex  v.  Clerk 104 

Rex  v.  Dalton    7(> 

Rex  V.  Douglass 156 

Rex  v.  Forsyth    155 


TABLE    OF   CASES. 


XVU 


Page 

Rex  V.  Foster    1-jO 

Kex  V.  Haas   ---4 

Rex  V.  Harris     -^ 

Rex  V.  IIe:ii)s    "I-sT 

Rkx   v.    Hutchinson    :>12 

Rex  V.  Jaue   D 1'^" 

Rex  V.  Jolnison    l"'-^ 

Rex  V.  Jiuld    "*> 

Rex  V.  Kettle 1"'^ 

Rex  V.  Kimberley    "T 

Rex  V.  Legiugham    328 

I'ex  V.  Lootii 15t; 

Rex  V.  Lord   Fitzwater 348 

Rex  V.  Mason  139 

Rex  V.  Marcbey 3r).j 

Rex  V.  Morgan    34(j 

Rex  V.  Morris    114 

Rex  v.  Newman    148 

Rex  V.  Oxford    3.j0 

Rex  V.  Philips 1G4 

Rex  V.  Piidilifoot 15T 

Rex  V.  Robe    103 

Rex  V.  Robinson    3<J5 

Rex  V.  Seton    379 

Rex  V.  Stone    258 

Rex  V.  Stride    118 

Rex  V.  Sndbury   l'>5 

Rex  v.  Taylor    20 

Rex  V.  Thomas    282 

Rex  V.  Thompson    103 

Rex  v.  Tomlinson   124 

Rex  V.  Trigg 133 

Rex  V.  Tnrner    338 

Rex  V.  Wariclvshall    316 

Rex  V.  Whitehead  103 

Rex  V.    WiU.rx 168 

Rex  V.  Wyndhani    78 

Robbins  v.  State 15 

Roberts  v.   State 194 

Robe,  Ex  parte 376 

Rough's    Case 119 

Rowe  V.   People 245 

Russen  v.  Lucas 43 


Scavage  v.  Tateham 

Selvester  v.  United  States. 

Semayne's  Case 

Shular  v.  State 

Simpson  v.  State 

Sir  William  Withipole's  Case. 


188, 


Smith  V.  State 

Sprouse  v.  Commonwealth. 

Stanley,  Kx  parte 

State  V.  Anderson 

Mik.Cr.Pr.— b 


Page 

State  V.  Arden    358 

State  V.  Auburn     140 

State  V.  Baker   I'J'-l 

State  V.  Bassett l-J'' 

State  V.  Beaton    140 

State  V.  Benham    189 

State  v.  Brooks 249 

State  V.  Jironn 150 

State  V.  Carver    360 

State  V.  Colly   10<» 

State  V.  Conley    123 

State   V.   Connell 372 

State  v.  Copp     H-"' 

State  V.  Cutshall  6 

State  V.  Dandy    H- 

State  V.  Dawkins    330 

State  V.  De    Ranee 301 

»State  V.  Doran    135 

State  V.  Dry  Fork  R.  Co 36 

State  V.  Duestrow 255 

State  V.  Eaves    35(5 

State  V.  Edwards   101 

State  V.  Ellison 24 

State  V.  French    ' 344 

State  V.  Gilbert    102 

State  V.  Green    336 

State  V.  Haddonfield   &  C.   Turn- 
pike  Co 127 

State  V.  Hamilton   306 

State  v.    Harper    312 

State  V.   Harris 318 

State  v.  Hensley   254 

State   V.   Hiclding 182 

State  V.  Hodges   133 

State  V.  Holley    362 

State  V.  Johnson    138 

State  V.  Keerl    122 

State  V.  Kelm  34 

State  V.  Kennedy   143 

State  V.  Kitchens    377 

State  V.  Langdon 37 

State  V.  Lockwood    Ill 

State  V.  Lohmdn    365' 

State  V.  McDowell   152' 

74    State  v.  :McGaliey    256- 

340    State  v.  McKennan 113; 

59    State  v.  Marlier    160 

240    State  v.  Newton 106 

11    State  V.  ^eOao 16.3 

State  V,  Nyhus    252 

231    State  v.  Riffe    184 

105    State  v.  Rosenbaum    196 

307    State  v.  Rowe    341 

225    State  v.  Ryan 364 

31    State  v.  Sales     HI 


XVlll 


TABLE   OF   CASE  8. 


Page 

State  V.  Seaborn    00 

State  V.  Smith 141,  181 

State  V.  Sutelifte  o-jS 

State  V.  Taylor    48 

State  V.  Vauu     359 

State  V.  Watson 181 

State  v.  Whitney    101 

State  V.  Wilcox   i'40 

State  v.  Williamson    100 

State  V.  Wood    80 

State  V.  Woodling    209 

State  V.  Woolsci/ 243 

State  of  Kentucky  v.  Denuisoii ...     60 
Swlggart  V.   State 222 

Taff  V.  State 380 

Tate's  Case 118 

Taylor  v.  Betsfokd    2(17 

Taylor  v.  Commouwealtb 38(j 

Terrill  v.  Superior  Court 170 

Territory  v.   Ketchiim 399 

Toney,  Ex  parte 389 

Tully  V.  ConwiomceaWi 103 

Tyndal's  Case 281 


Page 

United  States  v.  Brown 115 

United  States  v.  Burr 210 

United  States  v.  Davis 13 

(United  States  v.  Gilbert 191 

United  States  v.  Irvine 38 

United  States  v.  Porter 115 

United  States  v.  Rice 53 

United  States  v.  Sangos 391 

United  States  v.  Wilson 181 

Vaiifjlian  v.  State 264 

Vaughan's   Case 2.30 

Walker  v.  State 320 

Weenis  v.  United  States 404 

Wetherel  v.  Darly 187 

WiLKEKSON  V.  Utah 401 

Williams  v.   State 330 

William  Withipole's  Case 188 

Wilson  V.  State 309 

AMndliam  v.  Clere 72 

Withipole's  Case 188 

Young  V.  Rex 106 


CASES  ON 
CRIMINAL  PROCEDURE 


CHAPTER  I 
JURISDICTION 


If  two  of  the  king's  subjects  go  over  into  a  foreign  realm  and  fight 
there,  and  the  one  kill  tHe~"other.  this  mi^rdfr,  hpi'ncr  r^nnp  nnt  of  the 
realm^  cannot  he.  for  wanf  nflr^Ti]  ]^p^^.rd  and  determined  before  the 
coninion  law.  *  *  *  If  A.  give  Jj.  a  mortal  wITrmd  in  a  foreign 
countryTTTTometh  into  England  and  dieth,  this  cannot  be  tried  by  the 
common  law,  because  the  stroke  was  given  there,  where  no  visne  can 
come.  *  *  *  If  a  man  be  stricken  upon  the  high  sea  and  dieth  of 
the  same  stroke  upon  the  land,  this  cannot  be  enquired  of  by  the  com- 
mon law,  because  no  visne  can  come  from  the  place  where  the  stroke 
was  given  (though  it  were  within  the  sea  pertaining  to  the  realm  of 
England,  and  within  the  ligance  of  the  king).^  *  *  *  ^j^^^  before 
the  making  of  the  statute  of  2  Edw.  VI,  if  a  man  had  been  feloniously 
stricken,  or  poisoned  in  one  county,  and  after  had  died  in  another 
county,  no  sufficient  indictment  could  thereof  have  been  taken  in  either  r 
of  the  said  counties,  because,  by  the  law  of  the  realm  the  jurors  of  one  - 
county  could  not  enquire  of  that  which  was  done  in  another  county.^ 
It  is  provided  by  that  act  that  the  indictment  may  be  taken,  and  the 
appeal  brought  in  that  county,  where  the  death  doth  happen. 

3  Coke,  Inst.  48 

1  It  is  provided  by  Rev.  St.  U.  S.  §  730  (U.  S.  Comp.  St.  1001,  p.  ,585),  that 
in  sneli  case  the  courts  of  the  district  into  which  the  offender  is  first  brought 
shall  have  jurisdiction.  St.  2  Geo.  II,  e.  21.  provided  thnt  when  the  Ptvoke 
is  siven  in  England  and  the  death  occurs  out  of  England,  or  the  reverse, 
the  homicide  maj'  be  inquired  of  in  that  part  of  England  where  either  the 
death  occurred  or  the  stroke  was  given.  The  present  statute,  similar  in  its 
provisions,  is  St.  24  &  25  Vict.  c.  100,  §  10. 

2  Hale  says  (page  42G):  "It  was  dovbtful  whether  he  were  indictable  or 
triable  in  either,  but  the  more  common  opinion  was,  that  he  might  be 
indicted  where  the  stroke  was  given."     See  I'ear  Book,  7  Hen,  VII,  p.  8. 

Mik.Cb.Pb.— 1 


2.  JURISDICTION.  (Ch.  1 

COMMONWEALTH  v.  KUNZMANN. 

(Supreme  Court  of  Pennsylvania,  1862.     41  Pa.  429.) 

Woodward,  J.^  The  indictment  sets  forth  thai_a  general  election 
was  hejj^n  Pennsylvani?  nn  thg  second  Tuesday  of  October,  1861, 
under  the  laws  of  the  commonwealth,  and  that  in  pursuance  of  the 
forty-third  section  of  the  genecal  election  law  of  2d  July,  1839,  an 

election   was   helTfat   C^miP    T^ralm-omn      in    th^    Ftigtrirt   rvfj^nlnmhia,    on 

that  day,  by  the  captain  and  lieutenant  of  Company  I,  of  the  21st  regi- 
ment of  Pennsylvania  volunteers,  the  said  company  being  then  and 
there  a  detachment  of  militia  and  a  corps  of  volunteers  in  actual  serv- 
ice, under  a  requisition  from  the  President  of  the  United  States,  and 
by  the  authority  of  the  commonwealth,  and  then  goes  on  to  charge 
that  the  defendant,  "not'  boing  by  law  qualified  to  vote  at  said  election, 
and  being  then  and  there  an  unnaturalized  foreigner,  did_fraudulently 
vote"  at  said-elLLLiun  at  Cdiup  "Kalorama. 

To  this  indictment  the  defendant  filed  a  general  demurrer,  and  as- 
signed as  reasons  for  his  demurrer  that  the  forty-third  section,  under 
which  the  election  at  Camp  Kalorama  was  held,  was  unconstitutional 
and  void.  By  demurring,  he  admits  that  he  was  an  unnaturalized  for- 
eigner, that  he  was  not  qualified  to  vote,  and  that  he  voted  fraudu- 
lently— circumstances  which  would  make  him  mdictable  under  the 
119th  section  of  the  general  election  law,  if  his  offense  had  been  com- 
mitted in  Pennsylvania.  "RntJnnw  ^an  the  quarter  sessions  of  Philadel- 
phia tfilffl  jiirinHinticia   pf  a    mit;Hpmpannr   committed  m  tTTH-JDistrict  of 

Coluinhiai 

This  question  lies  at  the  very  threshold  of  this  case,  and  although 
defect  of  jurisdiction  is  not  one  of  the  reasons  assigned  for  demurring, 
yet  the  question  is  raised  necessarily  by  the  demurrer  and,  though  not 
argued  by  counsel,  must  be  noticed  by  us.  We  are  not  to  be  precipitat- 
ed into  the  discussion  of  a  grave  constitutional  question  in  a  case  of 
doubtful  jurisdiction.  The  first  duty,  therefore,  is  to  get  a  clear  con- 
ception of  this  point. 

The  common  law  considers  crimes  and  misdemeanors  as  altogether 
local,  and  cognizable  and  punishable  exclusively  within  the  jurisdic- 
tion where  they  are  committed.  "The  lex  loci,"  said  Lord  Brougham 
in  Warrender  v.  Warrender,  9  Bligh,  119,  "must  needs  govern  all 
criminal  jurisdiction,  from  the  nature  of  the  thing  and  the  purpose 
of  the  jurisdiction,"  Story  on  Conflict  of  Laws,  620,  and  cases  in 
note.  In  England,  many  statutes  have  been  passed  to  change  the  gen- 
eral rule  of  the  common  law  in  regard  to  the  venue  of  indictments 
and  to  make  offenses  committed  within  one  jurisdiction  triable  in  an- 
other;  but,  without  a  statute,  a  party  who  stole  goods  in  one  county 

3  Part  of  this  case  is  omitted. 


oil.  1) 


JURISDICTION, 


and  carried  them  into  another  was  held  to  be  indictable,  at  common 
law,  in  the  latter  county,  upon  the  principle  that  the  thief's  possession 
of  the  goods  is  a  fresh  larceny  in  every  county  into  which  he  carries 
them. 

This  rule,  however,  does  not  prevail  as  among  the  states  of  our 
Union;  for  in  Simmons  v.  Commonwealth,  5  Bin.  618,  it  was  held 
that  a  thief  who  stole  goods  in  the  state  of  Delaware,  and  brought 
them  into  Pennsylvania,  could  not  be  indicted  here.*  Our  federal 
government  has  provided  itself  with  various  statutes  for  punishing 
extraterritorial  offenses  when  committed  by  our  own  citizens,  whicli 
statutes  rest  upon  the  principle  of  public  law  that  every  nation  has  a 
right  to  bind  its  own  citizens  and  subjects  by  its  own  laws  in  every  I 
other  place — a  principle  whicli  Judge  Story  explains  to  mean  a  right  ' 
to  exercise  sovereignty  over  our  own  citizens,  when  they  return  with- 
in our  territorial  jurisdiction,  but  not  a  right  to  compel  or  require  obe- 
dience to  our  laws  on  the  part  of  other  nations  within  their  own  ter- 
ritorial sovereignty.    Conflict  of  Laws,  22. 

Nor  are  we  in  Pennsylvania  entirely  destitute  of  legislation  that  I's' 
intended  for  extraterritorial  application.  The  fifth  article  of  our  Con- 
stitution confers  upon  our  courts  the  powers  of  courts  of  chancery  to 
"obtain  evidence  from  places  not  within  the  state,"  and  bv  Act  of  As- 
sembly of  14th  April,  1828,  supplementary  to  our  recording  acts,  the 
Governor  is  authorized  to  appoint  commissioners  to  take  acknowledg- 
ment of  deeds,  etc.,  within  any  state  or  territory,  and  the  duties  of  the 
commissioners  are  very  specifically  defined. 

Whatever  extraterritorial  effect  such  laws  may  have  is  the  result, 
not  of  any  original  power  to  extend  them  abroad,  but  of  that  respect 
which,  from  motives  of  public  policy,  other  nations  are  disposed  to 
yield  to  them,  giving  them  effect  with  a  wise  and  liberal  regard  to 
common  convenience  and  mutual  benefits  and  necessities.  Says  Chan- 
cellor Kent  (2  Com.  [8th  Ed.]  p.  579):  "There  is  no  doubt  of  the 
truth  of  the  general  proposition  that  the  laws  of  a  country  have  no 
binding  force  beyond  its  territorial  limits,  and  their  authority  is  ad- 
mitted in  other  states  not  ex  proprio  vigore,  but  ex  comitate';  or,  in 
the  language  of  Huberus,  'qua  tenus  sine  prasjudicio  indulgcntiuni 
fieri  potest.'  "  And  according  to  Judge  Story,  in  the  silence  of  any 
positive  rule  affirming,  or  denying,  or  restraining  the  operation  of  for- 
eign laws,  courts  of  justice  presume  the  tacit  adoption  of  them  by  their 

4  Accord:  Lee  v.  State,  G4  Ga.  203.  07  Am.  Rep.  67  (1S79) ;  Beal  v  State 
15  Ind.  378  (ISOO) ;  Van  Buren  v.  State.  05  Neb.  223,  91  N.  W  '>01  (190'^)  ' 
State  V.  Le  Blanch,  31  N.  J.  Law,  82  (18(;4).  '  ^       "■" 

Contra:  State  v.  Underwood,  40  Me.  181.  77  Am  Dec.  254  (18.18)  •  State  v 
Bartlett.  11  Vt.  650  (]S39);  Wortbington  v.  State,  58  Md.  403,  42  Vm  Ken' 
3,>8  (1SS2);  Commonwealth  v.  White.  123  AFass.  430.  25  Am.  Kep  IK'.  (1877)- 
State  y.  P.outon.  26  Nov.  34,  62  I'ae.  595  (1900).  This  resnlt  has  been  reached 
by  statute  m  some  states.  Le  Vaul  v.  State,  40  Ala.  44  (18U6) :  Barclay  v 
United  States,  11  Okl.  503,  69  Pac.  798  (1902).  ^  -^i    v. 


4  JURISDICTION.  (Ch.  1 

own  government,  unless  they  are  repugnant  to  its  policy  or  prejudicial 
to  us  niterests.  Conflict  of  Laws,  38 ;  and  see  Chief  Justice  Taney's 
opinion  in  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  10  L.  Ed.  274. 

'11ns  I  understand  to  be  a  statement  of  the  rule  of  judgment  in  the 
courts  of  the  country  in  which  the  foreign  law  is  executed,  and  it  is 
to  be  inferred,  as  a  matter  of  course,  that  the  same  rule  would  prevail 
in  the  courts  of  the  country  from  which  the  law  proceeded ;  that  is, 
if  the  courts  where  the  law  is  executed  imply  a  tacit  adoption  of  it 
from  absence  of  objection,  the  courts  of  the  jurisdiction  furnishing 
the  law  will,  much  more,  make  the  same  implication.  In  addition  to 
this,  there  are  certain  general  rules  in  respect  to  the  admission  of  the 
lex  loci  contractus,  which  are  recognized  in  the  judicial  decisions  of 
all  countries.  It  has  become  a  settled  doctrine  of  public  law  that  per- 
sonal contracts  are  to  have  the  same  validity,  interpretation,  and  oblig- 
atory force  in  every  other  country  which  they  have  in  the  country 
where  they  were  made.  Matrimonial  rights,  as  between  husband  and 
wife,  are  determined  by  the  law  of  their  domicile,  and  personal  proper- 
ty follows  the  law  of  the  owner.  These  rules  are  generally  recognised 
ty  the  comity  of  nations.    2  Kent,  579,  and  cases  in  note. 

Gathering  up,  now,  so  many  of  these  principles  as  are  applicable  to 
the  question  before  us,  and  making  an  immediate  application  of  them, 
it  may  be  said  that  if  the  Legislature  of  Pennsylvania  provided  by  law 
that  any  of  her  citizens,  qualified  electors,  happening  to  be  in  the  Dis- 
trict of  Columbia  on  election  day,  might  hold  a  valid  election  there, 
and  an  election  was  held  in  pursuance  of  such  law,  without  objection 
from  the  local  autliorities,  we  are  to  hold  the  jurisdiction  of  our  courts 
to  extend  to  any  of  our  own  citizens  who  should  violate  any  of  the 
provisions  of  the  law.  We  could  not  call  on  the  judicial  tribunals  of 
the  District  to  punish  the  infraction.  They  would  not  execute  our 
law,  and  the  fraudulent  vote  of  the  defendant  would  be  an  offense 
against  no  law  of  their  own.  It  would  be  an  offense  only  against  our 
statute,  and  must  be  so  laid  in  the  indictment. 

But  the  whole  statute  would  be  there,  the  penal  sections  as  well  as 
the  enabling  clauses,  and  if,  in  an  attempt  to  exercise  the  privileges  of 
the  statute,  a  citizen  incurred  its  penalties,  he  would  be  answerable  in 
our  criminal  courts  when  he  returns  into  our  jurisdiction.  As  much 
so  as  false  swearing  under  a  commission  issued  out  of  our  courts,  or  a 
foro'ed  acknowledgment  of  a  deed  under  our  Act  of  1828,  would  be 
indictable  and  punishable  here.  His  liability  to  our  jurisdiction  rests, 
however,  be  it  observed,  on  his  citizenship  in  Pennsylvania.  It  is  be- 
cause the  volunteer  soldier,  in  the  service  of  the  general  government, 
is  a  citizen  of  Pennsylvania,  that  the  general  election  law  attends  him 
beyond  our  territory,  and  becomes  a  rule  of  action  for  him  wherever 
he  is.  It  is  no  rule  for  the  citizens  of  other  states,  or  for  unnaturalized 
foreigners,  simply  because  we  have  no  power  to  prescribe  rules  of  ac- 
tion for  the  citizens  and  subjects  of  foreign  governments. 


Cll.  1)  JURISDICTION.  5 

What,  then,  is  to  be  done  with  an  unnaturaHzed  foreigner,  who  casts 
a  fraudulent  vote  under  our  election  law  be}ond  our  territorial  juris- 
diction— a  foreigner  who  is  not  alleged  in  the  indictment  to  be  a  citi- 
zen for  any  purpose  in  Pennsylvania,  nor  to  have  a  domicile  here,  nor 
even  to  belong  to  the  militia  or  volunteers  of  the  state?  Have  we  ju- 
risdiction to  punish  such  a  man  for  a  misdemeanor  committed  beyond 
our  borders?  1  think  not.  The  officers  who  received  his  vote  might 
be  punishable.  Possibly  an  indictment  might  be  framed  against  him 
which  the  criminal  courts  of  the  District  of  Columbia  would  entertain. 
But  how  we  can  treat  him  as  amenable  to  our  jurisdiction  on  the  face 
of  this  indictment  I  do  not  see. 

Had    it    been    ^'W'-(7"f1    t1ir^    ^^^    hplnnopri    tn     Pnn^pnny    T  _nf    the    21st 

regiment  of  Pennsylvania  volunteers,  we  might  perhaps  assume  his 
citjzenship :  but  this  is  not  in  the  indictment.  For  aught  we  know, 
he  tnny  npypr  hr^^^pjippn  in  Penns\dvania_ until  the  time  be.  was  ^irrested 
for  the  mis(1eiiTeano?~aTregcd,  and  neverhave  been  a  member  of  any 
company  of  Pennsylvania  volunteers.  For  many  purposes  the  states 
of  the  Union  and  the  District  of  Columbia  are  not  foreign  countries  to 
us,  but  so  far  as  concerns  the  present  question  it  is  not  necessary  to 
state  the  distinctions  which  grow  out  of  our  peculiar  political  system, 
for  we  have  no  more  power  to  legislate  over  a  sister  state  or  the  Dis- 
trict of  Columbia  than  we  would  have  to  legislate  for  France  or  Eng-- 
land.  Then  this  is  the  case  of  a  prosecution  of  an  extraterritorial  mis- 
demeanor by  an  ofifender  not  alleged  to  owe  any  allegiance  whatever 
to  Pennsylvania.  If  we  can  entertain  jurisdiction  of  such  an  offense, 
we  must  assume  that  there  is  legislative  power  to  send  the  ballot  box 
beyond  our  state  lines,  and  that  the  judicial  power  accompanies  it,  to 
punish,  not  only  our  own  citizens  who  violate  it,  but  any  intruder  up- 
on it  from  whatever  nation  of  the  earth  he  may  come. 

If  it  be  said  that,  if  the  judicial  power  do  not  accompany  it,  there 
will  be  no  way  of  protecting-  the  purity  of  suffrage,  then  this  would  be 
an  argument,  not  onjy  against  the  constitutionality  of  those  sections 
of  the  act  which  authorized  it,  but  against  the  probability  that  the  Leg- 
islature ever  intended  to  give  those  sections  any  extraterritorial  effect. 

If,  on  the  other  hand,  it  were  conceded  that  the  judicial  power  of 
the  state  were  competent  to  punish  any  offender  against  our  election 
law  at  an  election  outside  of  our  territory,  though  he  be  an  alien  and 
not  a  citizen,  it  might  be  pertinently  asked  what  criminal  court  is  to 
administer  the  punishment.  The  criminal  jurisdiction  of  the  quarter 
sessons  of  Philadelphia,  like  that  of  similar  courts  in  other  counties 
of  the  state,  is  limited  to  offenses  committed  in  the  proper  county.  The 
general  rule  is  that  they  can  take  cognizance  of  no  other. 

If  a  citizen,  subject  when  at  home  to  the  jurisdiction  of  one  of  these 
courts,  commits  an  oft'ense  abroad  against  a  statute  of  ours,  and  is 
punished  for  it  by  the  appropriate  court  when  he  comes  home,  let  that 
stand  as  an  exception  to  the  general  rule.  But  neither  the  rule  nor 
the  exception  will^ivethe  quarter  sessions  of  Philadelphia  junsdiction 


6  JURISDICTION.  (Cb.  1 

to  punish  an  offense  coiiimitted  outside_oLtlie  state  by  a  man  who 
never  K^lr.no^rf7n  t1-ip^pTT<;fiJntinn  nt'lli^tronrt.  As  well  might  the 
quarter  sessions  of  Lancaster,  Berks,  or  Greene  county  take  cognizance 
of  it.  Is  it  indeed  so  that,  without  an  enabling  statute,  all  and  singu- 
lar the  courts  of  quarter  sessions  of  the  state  may  take  cognizance  of 
an  extraterritorial  offense  committed  by  a  foreigner?  The  law  would 
cease  to  be  a  system  of  principles  and  rules  if  such  a  thing  were  possi- 
ble, and  would  become  a  mere  jumble  of  incongruous  and  arbitrary 
powers. 

We  are  nf  npininn  ihaf  the  court  of  quarter  sessions  of  Philadel- 
phia hads4a4iiiisdiction  of  the  indictment  prosecuted,  and,  consequent- 
ly,  we  have  none!  TV^decline,  therefore,  to  enter  into  a  considera- 
tion of  the  constitutional  question  raised  upon  the  record,  but,  for  the 
reasons  above  given,  affirm  the  judgment. 


STATE  v.  CUTSHALIv. 

(Supreme  Court  of  North  Carolina,  1S92.     110  N.  C.  538,  l.j  S.  E.  201,  IG  Iv. 

R.  A.  130.) 

Avery,  J.^  The  statute  (Code,  §  988)  provides  that  "if  any  per- 
son, being  married,  shall  marry  any  other  person  during  the  life  of  the 
former  husband  or  wife,  whether  the  second  marriage  shall  have  taken 
place  in  the  state  of  North  Carolina  or  elsewhere,  every  such  oft'ender, 
and  every  other  person  counseling,  aiding,  or  abetting  such  oft'ender, 
shall  be  guilty  of  a  felony,  and  imprisoned  in  the  penitentiary  or  coun- 
ty jail  for  any  term  not  less  than  four  months,  nor  more  than  ten 
years,  and  any  such  offense  may  be  dealt  with,  tried,  determined,  and 
punished  in  the  county  where  the  offender  shall  be  apprehended  or  be 
in  custody  as  if  the  offense  had  been  actually  committed  in  that  coun- 
ty." The  general  rule  is  that  the  laws  of  a  country  "do  not  take  effect 
beyond  its  territorial  limits,  because  it  has  neither  the  interest  nor  the 
power  to  enforce  its  will,"  and  no  man  suffers  criminally  for  acts  done 
outside  of  its  confines.  1  Bish.  Crim.  Law  (7th  Ed.)  §§  109,  110; 
People  V.  Tyler,  7  Mich.  161,  74  Am.  Dec.  703 ;  Tyler  v.  People,  8 
Mich.  335 ;  State  v.  Barnett,  83  N.  C.  616 ;  State  v.  Brown,  2  N.  C. 
100,  1  Am.  Dec.  548.  In  the  case  of  State  v.  Ross,  76  N.  C.  242,  22 
Am.  Rep.  678,  the  court  said :  "Our  laws  have  no  extraterritorial  op- 
eration, and  do  not  attempt  to  prohibit  the  marriage  in  South  Carolina 
of  blacks  and  whites  domiciled  in  that  state" — thus  recognizing  the 
principle,  generally  accepted  in  America,  that  a  state  will  take  cogni- 
zance, as  a  rule,  only  of  offenses  committed  within  its  boundaries. 

Among  the  exceptions  to  this  general  rule  are  the  cases  where  one, 
being  at  the  time  in  another  state  or  country,  does  a  criminal  act,  which 

5  Part  of  this  case  is  omitted. 


Gh.  1)  JURISDICTION.  7 

takes  effect  in  our  own  state ;  as  where  one  who  is  abroad  obtains 
goods  by  false  pretenses,  or  circulates  libels  in  our  own  state,  and 
contrary  to  our  laws,  or  from  a  standpoint  beyond  the  line  of  our  state 
fires  a  gun  or  sets  in  motion  any  force  that  inflicts  an  injury  within  the 
state  for  which  a  criminal  indictment  will  lie.  1  Bish.  Crim.  Law,  § 
110 ;  Ham  v.  State,  4  Tex.  App.  659 ;  Cambioso  v.  Maffet,  2  Wash. 
C.  C.  98,  Fed.  Cas.  No.  2,330.  Persons  guilty  of  such  acts  are  liable 
to  indictment  and  punishment  when  they  venture  voluntarily  within 
the  territorial  bounds  of  the  offended  sovereignty,  or  when,  under  the 
provisions  of  extradition  laws  or  the  terms  of  treaties,  they  are  allowed 
to  be  brought  into  its  limits  to  answer  such  charges.     *     *     * 

So  a  foreigner,  not  accredited  to  another  government  as  a  represent- 
ative of  his  own  nation,  is  subject  to  the  law  of  the  country  in  which 
he  may  travel  or  establish  a  temporary  domicile,  and  may  be  tried  in 
its  tribunals  for  any  violation  of  its  criminal  laws  while  within  its  ter- 
ritorial limits.  Wheaton,  in  his  treatise  on  International  Law  (section 
120,  note  77),  says:  "In  Great  Britain,  France,  and  the  United  States, 
the  general  principle  is  to  regard  crimes  as  of  territorial  jurisdiction. 
*  *  *  The  question  whether  a  state  shall  punish  a  foreigner  for  a 
crime  previously  committed  abroad  against  that  state  or  its  subjects 
also  depends  upon  its  system  respecting  punishing  generally  for  crimes 
committed  abroad ;  Great  Britain  and  the  United  States  respecting 
strictly  the  principle  of  the  territoriality  of  crime."  While,  in  our  ex- 
ternal relations  with  other  nations,  our  federal  head,  the  United  States, 
is  the  only  sovereign,  for  the  purpose  of  internal  government  such  por- 
tion of  the  sovereign  power  as  has  not  been  surrendered  to  the  gen- 
eral government  is  retained  by  the  states.  11  Am.  &  Eng.  Enc.  Law, 
p.  440,  and  notes. 

In  the  exercise  of  their  reserved  powers,  especially  in  the  execution 
of  the  criminal  law,  questions  arise  which  are  settled  and  determined 
either  according  to  the  principles  of  international  law  or  by  analogy 
to  them.  It  is  contended  that  nothing  but  comity  between  nations,  in 
the  absence  of  express  provisions  of  treaties,  prevents  one  nationality 
from  making  laws  to  punish  persons  who  commit  criminal  offenses  in 
another  country,  and  afterwards  come  within  its  territory;  and  that, 
admitting  this  principle  to  be  correct,  there  can  be  no  treaty  stipula- 
tion, and  there  is  in  fact  no  constitutional  inhibition,  that  restricts  the 
Legislature  of  one  of  our  internal  sovereignties  from  enacting  laws  to 
punish  a  person  who  comes  into  its  domain,  so  as  to  be  apprehended 
there,  for  a  crime  committed  in  a  sister  state.  Article  29  of  the  con- 
firmatory charter  granted  by  Henry  III.  provided  that  "no  freeman 
should  be  taken  or  imprisoned,  or  disseised  of  freehold  or  liberties 
or  free  customs,  or  be  outlawed  or  exiled,  or  any  otherwise  destroyed, 
nor  will  we  pass  upon  him  or  condemn  him,  but  by  lawful  judgment 
of  his  peers  or  by  the  law  of  the  land." 

In  the  formal  declaration  of  independence  the  king  of  Great  Britain, 
after  being  charged  with  many  violations  of  fundamental  principles 


8  JURISDICTION.  (Ch.  1 

and  invasions  of  common  rights,  was  arraigned  before  the  world  "for 
deprivmg  us  in  many  cases  of  trial  by  jury;  for  transporting  us  be- 
yond the  seas  to  be  tried  for  pretended  olTenses."  This  language 
evinces  the  purpose  of  our  representatives  to  risk  their  lives  and  their 
fortunes,  in  part,  at  least,  to  secure,  not  simply  the  ancient  right  of 
trial  by  jury,  but  trial  by  a  jury  of  the  vicinage,  within  easy  reach  of 
all  evidence  material  for  the  vindication  of  the  accused,  where  the 
charge  might  prove  unfounded  upon  a  fair  investigation.  During  the 
same  year  these  principles  were  embodied  in  the  declaration  of  rights 
by  the  colonial  congress,  in  what  now  constitute  sections  13  and  17 
of  article  1  of  the  Constitution,  which  are  as  follows: 

"Sec.  13.  No  person  shall  be  convicted  of  any  crime  but  by  the 
unanimous  verdict  of  a  jury  of  good  and  lawful  men." 

"Sec.  17.  No  person  ought  to  be  taken,  imprisoned,  or  disseised  of 
his  freehold,  liberties,  or  privileges,  or  outlawed  or  exiled,  or  in  any 
manner  deprived  of  his  life,  liberty,  or  property,  but  by  the  law  of  the 
land." 

Not  only  has  section  13  been  construed  to  guaranty  to  every  per- 
son (whether  a  citizen  of  this  state  or  of  another  commonwealth)  a 
trial  by  jury  in  all  cases,  which  were  so  triable  at  common  law  (such 
as  an  indictment  for  a  felony),  but  a  trial  by  his  peers  of  the  vicinage, 
unless,  after  indictment,  it  should  appear  to  the  judge  necessary  to 
remove  the  case  to  some  neighboring  county,  in  order  to  secure  a  fair 
trial.  Judge  Cooley  says  (Const.  Lim.  marg.  pp.  319,  320):  "Many 
of  the  incidents  of  a  common-law  trial  by  a  jury  are  essential  elements 
of  right.  The  jury  must  be  indifferent  between  the  prisoner  and  the 
commonwealth,  and  to  secure  impartiality  challenges  are  allowed,  both 
for  cause,  and  also  peremptory,  without  assigning  cause.  The  jury 
must  also  be  summoned  from  the  vicinage  where  the  crime  is  supposed 
to  have  been  committed ;  and  the  accused  will  thus  have  the  benefit  on 
his  trial  of  his  own  good  character  and  standing  with  his  neighbors 
if  these  he  has  preserved,  and  also  of  such  knowledge  as  the  jury  may 
possess  of  the  witness  who  may  give  evidence  against  him.  He  will 
also  be  able  with  more  certainty  to  secure  the  attendance  of  his  own 
witnesses."  Kirk  v.  State,  1  Cold.  (Tenn.)  344;  Armstrong  v.  State, 
Id.  338 ;  State  v.  Denton,  6  Cold.  (Tenn.)  539.  This  strong  language 
is  used  in  commenting  upon  the  clause,  which,  in  substantially  the  same 
terms,  guaranties  the  right  of  trial  by  jury  in  all  serious  criminal  pros- 
ecutions in  every  one  of  the  states.     *     *     * 

After  the  federal  Constitution  had  been  ratified  the  people  of  the 
states,  with  the  recollection  of  the  flagrant  invasions  of  their  rights 
by  transporting  freeman  abroad  to  be  tried  for  "pretended  offenses" 
still  fresh,  amended  it  so  that,  says  Ordronaux,  "the  crime  and  its 
punishment  are  attached  to  the  jurisdiction  within  which  it  was  com- 
mitted." Ordronaux,  Const.  Leg.  259 ;  Const.  U.  S.  art.  3,  §  2,  cl.  3. 
These  amendments  apply  only  to  federal  tribunals,  but  the  fact  that 
they  were  prohibited  from  trying,  except  in  the  state  where  the  crime 


Cll.  1)  JURISDICTION.  9 

should  be  committed,  is  evidence  of  a  purpose  to  put  it  beyond  the 
power  of  congress  to  have  a  citizen  tried  for  a  criminal  ottense  ex- 
cept by  a  jury  of  the  vicinage,  and  at  a  point  not  so  remote  as  to  de- 
prive mm  of  the  benefit  of  his  witnesses.  Another  amendment  (arti- 
cle 4,  §  2,  cl.  2)  supplements  that  already  referred  to,  and  shows  by 
its  terms  that  the  purpose  in  enacting  it  was  to  definitely  localize  the 
forum  of  every  crime  committed  by  a  person  not  in  the  land  or  naval 
forces,  by  providing  for  the  extradition  of  criminals  on  demand  of  the 
governor  "to  the  state  having  jurisdiction  of  the  crime." 

It  was  evidently  contemplated  by  the  framers  of  the  Constitution 
that  ordinarily  there  would  be  but  one  state  where  a  crime  could  be 
properly  said  to  have  been  committed,  and  whose  courts  would  have 
cognizance  of  it.  It  was  natural  that  they  should  cling  to  the  old  ter- 
ritorial rule,  which  limited  the  jurisdiction  to  the  courts  of  the  county. 

The  state  of  South  Carolina  was  the  sovereign  whose  authority  was 
disregarded  when  the  bigamous  marriage  was  celebrated.  If  the  de- 
fendant married  a  second  time  in  South  Carolina  or  elsewhere  outside 
of  North  Carolina,  the  act  had  no  tendency  at  the  time  to  afifect  socie- 
ty here,  nor  can  that  unlawful  conduct  be  punished  as  a  violation  of 
our  criminal  law^s.  On  the  other  hand,  the  completed  act  of  entering 
into  a  second  marriage  in  a  neighboring  state  is  not  analogous  to  the 
cases  where  a  mortal  wound  is  inflicted  in  one  state,  and  the  wounded 
man  lingers  and  dies  from  its  effects  within  the  limits  of  another  state 
during  the  next  ensuing  12  months.  It  is  needless  now  to  discuss  the 
question  whether,  on  account  of  the  fact  that  the  ultimate  efifect  of 
the  wound  is  the  resulting  death,  the  state  in  which  the  death  occurs 
in  such  cases  should  not  be  held  to  have  common-law  jurisdiction  to 
try  for  murder,  since  nearly  all  of  the  states  have  enacted  statutes  pro- 
viding for  such  trials,  and  some  of  them  have  declared  such  enact- 
ments essential.  Com.  v.  Macloon,  101  Mass.  1,  100  Am.  Dec.  89; 
Bi.shop,  Crim.  Law,  §§  112-117.     *     *     * 

The  attempt  to  evade  the  organic  law  by  making  the  coming  into 
this  state  (after  committing  an  offense  in  another)  a  crime  is  too  pal- 
pable, in  view  of  the  admitted  fact  that  the  Constitution  of  the  United 
States  gives  to  citizens  of  all  the  states  the  immunities  and  privileges 
of  its  own  citizens,  and  of  their  guaranteed  right,  under  the  interstate 
commerce  clause,  to  pass  through  another  state  without  arrest  and  in- 
quiry into  their  accountability  for  oft'enses  against  their  own  sovereign- 
ty, but  especially  because  the  trial  for  the  new  felony  involves  an  in- 
vestigation of  the  original  bigamy  by  a  jury  not  of  the  vicinage  and 
remote  from  the  witnesses.     *     *     * 

Our  statute  applies  by  its  terms  as  well  to  a  citizen  of  another  state, 
who  in  transitu  afl:'ords  to  our  local  authorities  the  opportunity  to  ap- 
prehend him,  as  to  those  who  become  domiciled  within  our  borders. 
Ordronaux,  Const.  Leg.  pp.  339-343.  As  a  citizen  of  another  state, 
he  has  the  privilege  of  demanding  a  trial  in  a  particular  locality,  and 
by  a  jury  of  the  vicinage;    and  it  would  deprive  him  of  that  right, 


1 


10  JURISDICTION.  (Ch.  1 

guaranteed  by  the  federal  Constitution,  to  arrest  him  while  tempora- 
rily in  this  state,  and,  under  the  pretense  of  punishing  him  for  the  fel- 
ony of  coming  into  the  state  after  a  bigamous  marriage,  try  him  re- 
mote from  the  locality  where  the  marriage  was  celebrated  and  his  wit- 
nesses reside  for  an  offense  involving  only  the  question  whether  the 
second  marriage  was  in  fact  bigamous.    Ordronaux,  supra,  p.  255. 

Wharton  (3  Crim.  Law,  §  1685),  after  discussing  the  English  stat- 
ute, says:  "In  some  of  the  United  States  a  similar  statute  has  been 
enacted ;  in  others  a  continuance  in  the  bigamous  state  is  made  indict- 
able, no  matter  where  the  second  marriage  was  solemnized.  But,  when 
the  act  of  bigamous  marriage  is  made  the  subject  of  indictment,  then, 
at  common  law,  the  place  of  such  act  has  exclusive  jurisdiction." 

The  court  of  Alabama  has  expressly  held  in  Beggs  v.  State,  55  Ala. 
108,  that  where  a  person  is  indicted  for  the  bigamous  act  of  marrying 
a  second  time  in  another  state,  as  distinguished  ifrom  continuing  to  co- 
habit within  the  state  after  such  marriage,  the  indictment  could  not  be 
sustained;  but  the  court  did  not  find  it  necessary  in  that  case  to  dis- 
cuss the  question  of  legislative  power,  as  the  Legislature  had  modified 
the  English  statute  in  the  same  way  that  it  had  been  altered  by  law  in 
Vermont,  Massachusetts,  Tennessee,  Missouri,  and  other  states.  It 
will  not  be  insisted  that  the  courts  of  the  state  of  Maine  would  have 
power  to  enforce  a  statute  which  provided  for  punishing  with  death 
any  person  who  had  committed  murder  in  another  state,  and  then  gone 
within  its  limits,  by  apprehending  a  Texan,  and  requiring  him  to  send 
to  the  banks  of  the  Rio  Grande  for  testimony  to  meet  and  refute  that 
of  a  malignant  neighbor  who  had  followed  him  almost  across  the  con- 
tinent to  wreak  his  vengeance. 

If  a  state  has  the  power  to  punish  one  caught  within  its  borders  as 
a  felon  for  a  bigamous  marriage  committed  within  another  state,  what 
is  to  prevent  the  trial  of  a  citizen  found  in  a  neighboring  state  for  a 
homicide,  if  the  statute  were  broad  enough  to  include  murder  as  well 
as  bigamy?  if  the  statute  made  it  a  felony  punishable  with  death  to 
come  into  the  state  after  committing  murder  in  another?  The  asser- 
tion of  such  authority  would  jeopardize  the  security  of  every  Ameri- 
can citizen  who  ventured  beyond  the  confines  of  the  state  in  which  he 
resided.  The  express  provision  for  the  extradition  of  criminals  ex- 
cludes the  idea  of  trying  them  outside  of  the  Hmits  of  the  state  where 
the  offense  is  committed,  even  if  there  were  no  direct  guaranty  that 
they  should  not  be  subject  to  arrest  and  trial  for  offenses  against  their 
own  sovereign,  when  beyond  her  limits. 

The  additional  counts  in  which  it  is  charged  that  the  defendant,  aft- 
er the  bigamous  marriage  in  South  Carohna,  came  into  North  Caro- 
lina, and  cohabited  with  the  person  to  whom  he  was  married,  cannot 
be  sustained,  because  that  offense  is  not  covered  by  our  statute.  The 
North  Carolina  statute  would,  if  enforced,  subject  him  to  indictment 
if  he  should  come  across  the  border  and  leave  the  woman  behind. 
While  we  do  not  recognize  the  validity  of  marriages  of  parties  when 


Ch.  1)  JURISDICTION.  11 

tlic}'  leave  the  state  for  the  purpose  of  evading-  a  law  which  makes  a 
niarriag-e  between  them  unlawful,  and  with  the  intent,  after  celebrat- 
ing the  rites  in  another  jurisdiction,  to  return  and  live  in  this  state 
(State  V.  Kennedy,  76  N.  C.  251,  23  Am.  Rep.  (JS3),  we  have  no  ex- 
press statute  making-  such  acts  indictable  as  a  felony,  but  only  as  a 
misdemeanor,  where  they  live  in  adulterv  here  (State  v.  Cutshall,  109 
N.  C.  764,  14  S.  E.  107,  26  Am.  St.  Rep^  599). 

This  fact  is  fatal  to  another  count  of  the  indictment.  But  we  do 
not  wish  to  be  imderstood  as  questioning  the  power  of  the  state  to 
punish  one  of  its  citizens  who  goes  out  of  the  state  with  intent  to  evade 
its  laws  by  celebrating  a  bigamous  marriage  beyond  its  jurisdiction, 
and  returning  to  live  within  its  borders.  For  the  reasons  given  we 
think  that  there  was  no  error  in  the  judgment  of  the  court  below 
quashing  the  indictment;  and  it  is  affirmed.*^ 


SIMPSON  V.  STATE. 

(Supreme  Court  of  Georgia,  1S93.    92  Ga.  41,  17  S.  E.  984.) 

Indictment  for  assault  to  murder. 

Lumpkin,  j.t  *  *  *  Under  the  evidence  introduced  in  behalf  of 
the  state,  and  which  the  jury  evidently  believed  to  be  true,  the  ac- 
cused shot  twice  at  the  prosecutor,  intending  the  balls  from  the  pistol 
used  to  take  effect  upon  him.  At  the  time  of  the  firing  the  prosecutor 
was  in  a  boat  upon  the  Savannah  river,  and  within  the  state  of  Georgia, 
and  the  accused  was  standing  upon  the  bank  of  the  river  in  the  state 
of  South  Carolina.  It  was  conceded  that  if  either  or  both  of  the  balls 
had  struck  the  prosecutor  an  offense  of  some  kind  would  have  been 
committed  in  Georgia,  upon  the  idea  that  the  act  of  the  accused  took 
effect  in  this  state ;  but  it  Avas  contended  that,  inasmuch  as  the  prose- 
cutor was  not  struck,  no  effect  whatever  was  produced  in  Georgia 
by  the  act  in  question. 

This  contention  is  not  well  founded  in  point  of  fact,  for  the  evidence 
."^hows  conclusively  that,  although  the  prosecutor  was  not  injured,  the 
balls  did  strike  the  water  of  the  river  in  close  proximity  to  him,  within 
this  state,  and  therefore  it  is  certain  that  they  took  effect  in  Georgia, 
although  not  the  precise  effect  intended,  assuming  that  the  verdict 
correctly  finds  it  was  the  deliberate  purpose  of  the  accused  to  actually 
shoot  at  the  prosecutor.  What  the  accused  did  was  a  criminal  act,  and 
it  did  take  effect  in  this  state.  Mr.  Bishop  says:  "The  law  deems  that 
a  crime  is  committed  in  the  place  where  the  criminal  act  takes  effect. 

6  Shepherd,   .T.,   concurred  in   the  conclusion.     Merrinion,   C.   J.,   dissented. 
Contra:    Kex  v.  Earl  Kussell.  20  Cox,  C.  C.  '51  (1901),     See,  also.  Hanks 
V.  State,  13  Tex.  App.  2S9  (1882). 
'  Part  of  this  case  is  omitted. 


12  JURISDICTION.  (Ch.  1 

Hence,  in  many  circumstances,  one  becomes  liable  to  punishment  in  a 
particular  jurisdiction  while  his  personal  presence  is  elsewhere.  Even 
in  this  way  he  may  commit  an  offense  against  a  state  or  county  upon 
whose  soil  he  never  set  his  foot."  1  Bish.  Crim.  Proc.  §  53.  And  see 
Bish.  Crim.  Law,  §  110. 

Of  course,  the  presence  of  the  accused  within  this  state  is  essential 
to  make  his  act  one  which  is  done  in  this  state,  but  the  presence  need 
not  be  actual.  It  may  be  constructive.  The  well-established  theory  of 
the  law  is  that,  where  one  puts  in  force  an  agency  for  the  commis- 
sion of  crime,  he,  in  legal  contemplation,  accompanies  the  same  to  the 
point  where  it  becomes  effectual.  Thus,  a  burglary  may  be  committed 
by  inserting  into  a  building  a  hook  or  other  contrivance  by  means  of 
which  goods  are  withdrawn  therefrom ;  and  there  can  be  no  doubt 
that,  under  these  circumstances,  the  burglar,  in  legal  contemplation, 
enters  the  building.  So,  if  a  man  in  the  state  of  South  Carolina  crim- 
inally fires  a  ball  into  the  state  of  Georgia,  the  law  regards  him  as  ac- 
companying the  ball,  and  as  being  represented  by  it,  up  to  the  point 
where  it  strikes.  If  an  unlawful  shooting  occurred  while  both  the 
parties  were  in  this  state,  the  mere  fact  of  missing  would  not  render  the 
person  who  shot  any  the  less  guilty.  Consequently,  if  one  shooting 
from  another  state  goes,  in  a  legal  sense,  where  his  bullet  goes,  the 
fact  of  his  missing  the  object  at  which  he  aims  cannot  alter  the  legal 
principle. 

Cases  are  numerous  in  which  it  has  been  held  that  where  a  per- 
son wounds  another  in  one  state  or  country,  but  the  person  wounded 
dies  elsewhere,  beyond  its  territorial  boundaries,  the  courts  of  the  state 
or  country  in  which  death  occurred  have  jurisdiction  to  try  the  of- 
fense. A  leading  case  on  this  line  is  that  of  Tyler  v.  People,  8  Mich. 
320,  in  which  there  was  a  dissenting  opinion  by  Justice  Campbell.  The 
ruling  of  the  majority  of  the  court,  however,  was  approved  in  the  case 
of  Com.  v.  Macloon,  101  Mass.  1,  100  Am.  Dec.  89. «  Justice  Gray, 
who  delivered  the  opinion  in  the  latter  case,  says,  on  page  7,  that  if 
one's  "unlawful  act  is  the  efficient  cause  of  the  mortal  injury,  his  per- 
sonal presence  at  the  time  of  its  beginning,  its  continuance,  or  its  re- 
sult, is  not  essential.    He  may  be  held  guilty  of  homicide  by  shooting, 

8  In  Tyler  v.  People  (1860)  and  Commonwealth  v.  Macloon  (1869)  the  de- 
fendants were  indicted  under  statutes  providins;  for  such  trial  In  the  state 
where  the  death  occurred.  In  the  absence  of  such  a  statute  the  court  held,  In 
State  V.  Carter.  27  N.  J.  Law,  499  (1859),  that  the  defendant  was  not  indict- 
able in  New  .Jersey,  where  his  victim  died,  but  only  in  New  York,  where  the 
mortal  wound  was  given.  Where  the  question  is  not  regulated  by  statute, 
or  where  the  statute  merely  provides  that  offenses  shall  be  tried  in  the  county 
where  the  offense  Is  committed,  it  is  generally  held  that  the  indictment  is 
properly  brought  in  the  state  and  county  where  the  blow  Avas  struck.  Green 
V.  State,  60  Ala.  40,  41  Am.  Rep.  744  (1880);  U.  S.  v.  Guiteau,  1  Mackey, 
498,  47  Am.  Rep.  247  (1882)  ;  State  v.  Bowen,  16  Kan.  475  (1886) ;  State  v. 
Kelly,  76  Me.  331,  49  Am.  Rep.  620  (1884).  In  State  v.  Kelly,  supra,  the  fatal 
blow  was  struck  in  a  fort  belonging  to  the  United  States  in  Maine,  and  the 
victim  died  outside  of  said  fort.  It  was  held  that  the  state  court  had  no 
jurisdiction  of  the  offense. 


Cll.  1)  JURISDICTION.  13 

even  if  he  stands  afar  off,  out  of  sight,  or  in  another  jurisdiction"; 
and  the  words  quoted  are  followed  by  apt  illustrations.  On  page  17 
of  the  same  report  Justice  Gray  disapproves  the  dissenting  opanon  of 
Justice  Campbell  above  mentioned. 

There  is,  however,  a  clear  distinction  between  cases  like  the  one  just 
cited,  where  a  wound  is  inflicted  in  one  jurisdiction  and  death  ensues 
in  another,  and  cases  like  the  present,  where  the  accused  in  one  state 
puts  in  operation  a  force  which  takes  effect  in  another.  On  page  343 
of  8  Mich.,  supra,  this  distinction  is  clearly  stated  by  Justice  Camp- 
bell. He  says  the  doctrine  of  constructive  presence  is  not  applicable 
to  a  case  like  that  with  which  he  was  then  dealing,  and  then  uses  ihe 
following  language  which  sustains  our  ruling  in  the  case  at  bar. 
Speaking  of  constructive  presence,  he  says :  "All  that  it  amounts  to  is 
that  the  crime  shall  be  regarded  as  committed  where  the  injurious  act 
is  done.  A  wounding  must,  of  course,  be  done  where  there  is  a  per- 
son wounded,  and  the  criminal  act  is  the  force  against  his  person. 
That  is  the  immediate  act  of  the  assailant,  whether  he  strikes  with  a 
sword  or  shoots  a  gun ;  and  he  may  very  reasonably  be  held  present 
where  his  forcible  act  becomes  directly  operative."  This  doctrine  is 
supported  by  Rorer  on  Interstate  Law,  241,  243,  244,  citing  Johns  v. 
State,  19  Ind.  431,  423,  81  Am.  Dec.  408.  And  see  Whart.  Confl. 
Laws,  §  825,  and  notes  on  pages  717,  718;  Whart.  Crim.  Law,  §§  278- 
280. 

In  Adams  v.  People,  1  N.  Y,  173,  it  appeared  that  the  accused  forged 
a  paper  in  Ohio,  upon  which  he  procured  money  in  New  York,  through 
an  innocent  agent,  without  going  into  the  latter  state.  He  afterwards 
voluntarily  went  into  that  state,  and  was  indicted  and  tried  for  the 
crime.  It  was  conceded  by  both  court  and  counsel  that  he  was  guilty 
of  committing  the  crime  in  the  state  of  New  York,  and  the  question 
upon  which  the  case  turned  was  simply  whether  or  not,  inasmuch  as 
he  owed  no  allegiance  to  that  state,  he  could  be  tried  and  punished 
therein.  In  U.  S.  v.  Davis,  2  Sumn.  482,  Fed.  Cas.  No.  14,932,  it  ap- 
peared that  a  gun  was  fired  from  an  American  ship  lying  in  the  har- 
bor of  Raiatea,  one  of  the  Society  Isles,  by  which  a  person  on  a  schoon- 
er belonging  to  the  natives,  and  lying  in  the  same  harbor,  was  killed ; 
and  it  was  held  that  the  act,  in  contemplation  of  law,  was  done  on 
board  the  foreign  schooner,  where  the  shot  took  effect,  and  that  juris- 
diction of  the  crime  belonged  to  the  foreign  government,  and  not  to 
the  courts  of  the  United  States. 

In  Hawes  on  Jurisdiction  (section  110)  it  is  laid  down  that  "a  crime 
may  be  committed  within  the  jurisdiction  of  a  state,  although  the  per- 
son committing  it  never  was  within  its  borders,  if  the  act  takes  effect 
there."  An  interesting  discussion  pertinent  to  the  question  involved 
may  be  found  in  G  Crim.  Law  Mag.,  beginning  on  page  155,  in  an  ar- 
ticle entitled  "Dynamiting  and  Extraterritorial  Crime."  "A  party  who, 
in  one  jurisdiction,  or  in  one  county,  may  put  in  operation  a  force  that 
does  harm  in  another,  may  be  liable  in  either  for  the  offense."    Brown, 


14  JURISDICTION.  (Ch.  1 

Jur.  §  92.  This  section  also  contains  numerous  illustrations  which 
are  apt  and  pertinent.     See,  also,  Reg.  v.  Rogers,  14  Cox,  Cr.  Cas.  22. 

The  above  authorities  demonstrate  beyond  question  that  a  criminal 
act  begun  in  one  state  and  completed  in  another  renders  the  person 
who  does  the  act  liable  to  indictment  in  the  latter.  In  view  of  these 
authorities,  there  cannot  in  the  present  case  be  any  doubt  whatever 
that  Simpson  would  have  been  indictable  in  Georgia  if  a  ball  from  his 
pistol  had  actually  wounded  Sadler.  That  this  would  be  true  is  too 
well  estabhshed  for  serious  controversy.  The  able  and  zealous  coun- 
sel for  the  plaintiff  in  error  candidly  conceded  that  such  would  be  the 
law,  but  contended  that,  as  the  balls  "took  no  effect  in  Georgia,"  the 
entire  act  of  the  accused  was  committed  in  South  Carolina,  and  that 
he  really  did  nothing  in  this  state. 

We  have  endeavored  to  show  that  this  contention  is  not  sound.  As 
we  have  already  stated,  the  act  of  the  accused  did  take  effect  in  this 
state.  He  started  across  the  river  with  his  leaden  messenger,  and  was 
operating  it  up  to  the  moment  when  it  ceased  to  move,  and  was,  there- 
fore, in  a  legal  sense,  after  the  ball  crossed  the  state  line,  up  to  the 
moment  that  it  stopped,  in  Georgia.  It  is  entirely  immaterial  that  the 
object  for  which  he  crossed  the  line  failed  of  accomplishment.  It  hav- 
ing been  established  by  abundant  authority  and  precedent  that  in  crime 
there  may  be  a  constructive  as  well  as  an  actual  presence,  there  can  be, 
in  a  case  of  this  kind,  in  which  the  act  of  the  accused,  when  analyzed, 
is  simply  an  attempt  to  unlawfully  wound  another  by  shooting,  no  ra- 
tional distinction  in  principle,  as  to  the  question  of  jurisdiction,  wheth- 
er the  attempt  is  successful  or  not.  The  criminality  was  complete,  and 
the    offense    was    perpetrated    in    Georgia,    irrespective    of    results. 

^        ^        >!• 

Judgment  affirmed.* 

3  Accord:  State  v.  Hall,  114  N.  C.  909,  19  S.  E.  602,  28  L.  R.  A.  59,  41 
Am.  St.  Rep.  822  (1894),  where  the  court  refused  jurisdiction  of  defendant, 
who,   standing  in  North  Carolina,   shot  a   person   in  Tennessee. 

There  being  no  common  law  of  the  United  States  as  to  crimes  (see  U.  S. 
r.  Coolidge,  1  Wheat.  415.  4  L.  Ed.  124  [ISIG] ;  U.  S.  v.  Worrall,  2  Dall.  384. 
1  L.  Ed.  426  [1798]),  the  federal  courts  have  no  jurisdiction  to  punish  an  act. 
unless  such  act  is  made  a  crime  by  the  Constitution  or  by  act  of  Congress. 
Congress  has  from  time  to  time,  under  the  power  given  it  by  the  Constitution 
to  create,  define,  and  punish  offenses  whenever  they  shall  deem  it  necessary 
for  effectuating  the  objects  of  the  government,  enacted  statutes  punishing 
crimes  against  the  United  States  and  providing  for  the  proper  venue.  If 
such  statutes  do  not  expressly  or  by  implication  make  the  crime  exclusively 
cognizable  in  a  federal  court,  and  the  same  criminal  act  is  also  punishable 
by  the  laws  of  the  state,  the  state  in  which  the  act  was  done  has  concurrent 
jurisdiction  over  the  offense.  Moore  r.  Illinois,  14  How,  13,  14  L.  Ed.  300 
(1843). 

See,  for  jurisdiction  of  the  United  States  Court  for  China,  Biddle  v. 
United  States,  156  Fed.  759,  84  C.  C.  A.  415  (1907). 

Const,  art.  1,  §  8,  cl.  17,  gives  the  right  of  exclusive  legislation  to  the 
United  States,  to  exercise  authority  over  all  places  purchased  bv  the  consent 
of  the  Legislature  of  the  state  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dockyards,  and  other  needful  buildings.  The  fed- 
eral courts  have,  therefore,  exclusive  jurisdiction  over  all  crimes  committed 


Ch.  2)  VENUE.  15 

CHAPTER  II 
VENUE 


ROBBINS  V.  STATE. 

(Supreme  Court  of  Ohio,  18o7.     8  Ohio  St.  131.) 

Bartley,  C.  J.^  *  *  *  The  court  was  asked  to  instruct  the 
jury  that,  to  convict  under  this  indictment,  it  must  be  proven  that  the 
offense  was  committed  in  Marion  county,  and  that,  if  the  accused  gave 
the  ppison  into  the  hands  of  the  deceased  in  Shelby  county,  and  she 
did  not  swallow  it  there,  but  carried  it  with  her  into  Marion  county, 
and  there  swallowed  it,  and  became  poisoned,  the  crime  was  commit- 
ted, if  committed  at  all,  in  Shelby,  and  not  in  Marion,  county.  The 
court  refused  to  give  this  instruction,  as  asked,  but  did  charge  the 
jury  that,  before  finding  a  verdict  of  guilty,  they  must  be  satisfied, 
from  the  proof,  that  the  accused  committed  the  act  in  Marion  county, 
but  that  it  was  not  necessary  that  they  should  find  that  he  had  been  in 
Marion  county,  or  had  given  the  poison  into  the  hands  of  the  deceased 
in  that  county.  It  would  be  sufficient,  to  justify  a  conviction,  if  thev 
found  that  the  accused  had  furnished  the  poison  to  Nancy  Holly  in 
Shelby  county,  and  that,  before  swallowing  it,  she  had  taken  it  with  her 
and  went  into  the  county  of  Marion,  and  there  swallowed  the  poison 
and  died. 

It  is  insisted  that  the  court  erred  in  this  part  of  the  instructions  to 
the  jury.  To  determine  this,  it  becomes  necessary  to  inquire  what  con- 
stitutes the  act  of  "administering  poison,"  within  the  meaning  of  the 
statute.  If  it  consisted  in  simply  giving  or  prescribing  the  poison,  there 
would  be  great  force  in  this  exception.  But  the  term  "administer,"  as 
used  in  the  statute,  has  acquired  a  legal  signification,  importing  not 
simply  the  prescribing  or  giving  of  the  drug,  but  directing  and  caus- 
ing it  to  be  taken.  Webster,  in  his  Dictionary  (quarto),  says  that: 
"To  administer  medicine  is  to  direct  and  cause  it  to  be  taken."  The 
question  as  to  the  legal  import  of  this  term,  in  the  criminal  statute  of 
England  (9  Geo.  IV,  §  11),  was  presented  in  the  case  of  Rex  v.  Cad- 

in  sufh  places,  so  purchased,  in  the  absence  of  an  express  reservation  of 
.iunsfliction  by  the  state  Le,?islature  (United  States  v.  Cornell  '>  M-i^oii  (10 
Fed.  Cas.  No.  14.SG7  [38101),  or  in  lands  ceded  by  a  state  to  the  United  States 
without  reservation  of  jurisdiction  (United  States  v.  Carter  [C  C]  84  Fed  Q'>''> 
[1897]).  But  the  purchase  of  such  lands,  without  the  consent  of  the  state 
ni  whose  territory  they  are,  does  not  give  the  federal  court  jurisdiction  over 
?^ol'^^  committed  in  such  lands.  United  States  v.  Ponn  (C.  C.)  48  Fed  G6D 
(1880).  And  see  In  re  O'Connor,  37  Wis.  379,  19  Am.  Rep.  765  (1875).  ' 
1  Part  of  this  case  is  omitted. 


16  VENUE.  (Ch.  2 

man,  wherein  it  was  held  that  there  was  no  administering  unless  the 
poison  was  taken  into  the  stomach  by  the  person  to  whom  it  was  ad- 
ministered. Carr.  Supp.  237.  It  is  true  Ryan  &  Moody  have  given  a 
contradictory  report  of  this  decision.  Rex  v.  Cadman,  R.  &  M.  C.  C. 
Rep.  114.  But  Mr.  Justice  Park,  who  participated  in  the  decision,  took 
occasion  to  correct  the  mistake  and  affirm  the  correctness  of  Carring- 
ton's  report  of  the  case,  in  the  decision  of  Rex  v.  Harley,  19  Eng.  Com. 
Law  Rep.  424,  in  which  he  said  "that  his  note"  (as  well  as  his  recollec- 
tion) "of  the  case  was  that  the  judges  were  unanimously  of  opinion 
that  the  poison  had  not  been  administered^  because  it  had  not  been  tak- 
en into  the  stomach,  but  only  into  the  mouth." 

That  the  term  has  the  same  import  in  the  criminal  statutes  of  this 
state  is  manifest  from  the  phraseology  of  the  thirty-seventh  section  of 
the  act  for  the  punishment  of  crimes  (Rev.  St.  Ohio,  275),  which  is  as 
follows :  "That  if  any  person  shall  give  any  mortal  blow,  or  adminis- 
ter any  poison  to  another,  in  any  county  within  this  state,  with  intent 
to  kill,  and  the  party  so  stricken  or  poisoned  thereof,  shall  afterwards 
die  in  any  other  county  or  state,  the  person  giving  such  mortal  blow, 
or  administering  such  poison,  may  be  tried  and  convicted  of  murder 
or  manslaughter,  as  the  case  may  be,  in  the  county  where  such  mortal 
blow  was  given,  or  poison  administered."  This  provides  for  cases 
where,  after  the  criminal  act  is  fully  consummated,  the  person  receiv- 
ing the  mortal  blow,  or  swallowing  the  poison,  is  enabled  to  go,  and 
does  go,  into  another  county,  or  state,  before  death.  It  is  not  the  place 
of  the  death,  but  the  place  where  the  criminal  act  is  perpetrated  or  con- 
summated, to  which  the  jurisdiction  to  try  the  case  is  given.  The  lan- 
guage of  the  statute  is,  "and  the  party  so  stricken  or  poisoned  thereof, 
shall  afterwards  die  in  any  other  county  or  state,"  etc. 

The  county  to  which  the  jurisdiction  is  given  is  the  county  in  which 
the  person  is  "poisoned  thereof" ;  that  is,  of  the  administering  men- 
tioned. Now,  the  poison  must  be  taken  into  the  stomach  before  the 
person  can  be  poisoned.  So  that  the  administering  the  poison  is  not 
consummated  until  the  person  to  whom  it  is  administered  is  poisoned. 
It  is  manifest,  therefore,  that  the  criminal  act  of  administering  poison 
is  not  consummated  by  simply  prescribing  or  delivering  the  poison.  It 
must  be  actually  swallowed,  or  taken  into  the  stomach,  pursuant  to  the 
prescription  or  direction  given,  in  order  to  constitute  the  overt  act  of 
administering  poison.  If  the  accused  did  prescribe  and  deliver  the 
poison  to  Nancy  Holly  in  Shelby  county,  yet  as  she  did  not  take  it,  or 
swallow  it,  in  that  county,  the  criminal  act  was  not  complete  in  that 
county,  but  was  consummated  in  Marion  county,  where  Nancy  was 
actually  poisoned.  Now,  where  a  criminal  act  is  commenced  in  one 
county,  but  consummated  in  another,  the  jurisdiction  to  try  the  offend- 
er is  in  the  county  where  the  criminal  act  is  consummated,  or  becomes 
complete. 

It  is  insisted  that  the  accused  had  not  been  in  Marion  county,  and 
that  a  person  could  not  commit  a  crime  in  a  county  in  which  he  had 


Ch.  2)  VENUE.  17 

not  been.  Ordinarily  this  would  be  true,  but  it  is  not  necessarily  so. 
A  person  may  commit  a  criminal  act  in  a  county,  although  he  has  never 
stepped  a  foot  wT!?Ttii  its  liuiils.  Tf  a  person  in~MoiTDw  county,  near 
the  line  of  Marion  county^should,  by  firmg  a  gun  or  hurling  a  bludg- 
eon across  the"coimty  line,  unlawfully  kill  a  person  in  Marion  county, 
he  might  be  guilty  of  a  crime,  and  be  amenable  to  a  prosecution  in  the 
latter  county,  although  he  had  never  been  within  its  limits. 

There  does  not  appear,  therefore,  to  have  been  any  error  in  the 
charge  of  the  court  on  this  point. 


HASKINS  V.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1857.    16  N.  T.  344.) 

The  prisoneL_was  indicted,  with  four  other  persons,  for  grajid  lar- 
ceny ;  the  property^'llegeH'^to  have  been  stolen  being  iiioney  and  bank 
notes,  the  property  of  David  J.  Shaw. 

Denio,  C.  j.2  *  *  *  As  the  stolen  money  was  brought  by  the 
thieves  into  the  county  of  Onondaga,  the  prisoner  was  legally  indicted 
in  that  county.  This  has  been  the  settled  law  from  an  early  period. 
3  Inst.  113;  1  Hale's  P.  C.  507;  People  v.  Gardner,  2  Johns.  477. 
Even  if  the  original  taking  had  been  in  another  state  or  country,  and 
the  felon  had  brought  the  stolen  property  into  this  state,  he  could  now 
be  indicted  in  any  county  into  or  through  which  he  carried  it.  2  Rev. 
St.  698,  §  4 ;  People  v.  Burke,  11  Wend.  129.  No  distinction  arises 
out  of  the  fact  that  a  burglary  was  committed  wdiere  the  property 
was  stolen,  in  Cayuga  county.  Burglary,  when  accompanied  with 
larceny,  is  a  compound  offense.  Under  a  count  for  the  burglary  the 
prisoner  may  be  convicted  of  a  simple  larceny.  At  the__common  law 
the  burglary  could  only  have  been  prosecuted  in  the  coimty~where  it 
was  committed ;  but  when~arcompanie"d~withlarceny  the  latter  could 
be  prosec^ted-ia.jjiy  county  into  which  the  prisoner  took  the  stolen 
property.  The  same  is  true  of  robbery  or  other  compound  offenses, 
^^^he  "principle  is  well  illustrated  in  the  following  passage  from 
Hale:  "A.  robs  B.  on  the  highway,  in  the  county  of  C,  of  goods  of 
only  the  value  of  twelve  pence,  and  carries  them  into  the  county  of 
D.  It  is  certain  that  this  is  larceny  in  the  county  of  D.,  as  well  as 
in  the  county  of  C ;  but  it  is  only  robbery  in  the  county  of  C,  where 
the  first  taking  was,  and  for  robbery  he  cannot  be  indicted  or  appre- 
hended in  the  county  of  D.,  but  only  in  the  county  of  C.  But  he  may  be 
indicted  of  larceny  in  the  county  of  D.,  though  the  robbery  were  but 
of  the  value  of  one  penny;  yet  if  A.  were  indicted  thereof  in  the 
county  of  C,  he  should  have  had  judgment  of  death  and  been  excluded 

2  Part  of  this  case  is  omitted. 
Mik.Cb.Pb.— 2 


18  VENUE.  (Ch.  2 

from  clergy."  1  Hale's  P.  C.  536.  In  these  cases  the  indictment 
takes  no  notice  of  the  county  where  the  first  taking  was,  the  theory 
being  that  the  legal  possession  of  the  goods  remains  in  the  true  owner, 
and  every  moment's  continuation  of  the  trespass  and  felony  amounts 
to  a  new  caption  and  asportation.  1  Russ.  on  Crimes,  173;  2  Hale, 
163 ;  1  Hawk.  P.  C.  c.  33,  §  52 ;  4  Bl.  Com.  304 ;  2  East,  P.  C.  771, 
c.  16,  §  156.  The  idea  that,  in  cases  of  this  description,  the  crime  is 
considered  as  actually  committed  in  the  county  where  the  offender  is 
found  with  the  goods,  is  very  distinctly  carried  out  in  the  case  of  Rex 
V.  Parker,  1  Russ.  174.  An  indictment  was  found  in  Hertfordshire 
for  stealing  four  live  tame  turkeys,  and  it  appeared  that  they  were 
stolen  alive  in  Cambridgeshire,  killed  there,  and  carried  dead  into 
Hertfordshire;  and,  upon  the  point  being  heard,  the  judges  held  that, 
though  the  carrying  into  Hertfordshire  constituted  a  larceny,  yet  it 
was  a  new  larceny  there,  and  a  larceny  of  dead  turkeys,  and  not  of 
live  ones. 

It  was  unnecessary,  and  I  think  it  would  have  been  erroneous,  to 
have  set  out  in  the  indictment  the  offense  in  Cayuga  county.  The 
courts  in  Onondaga  county  had  no  jurisdiction  of  that  transaction,  as 
a  distinct  offense.  It  was  simply  matter  of  evidence,  to  characterize 
what  was  done  in  Onondaga,  and  to  show  the  quality  of  that  act. 

The  prisoner  might,  under  the  statute,  have  been  indicted  in  Onon- 
daga for  the  burglary  committed  in  Cayuga.  2  Rev.  St.  727,  §  50.  In 
such  a  case,  I  think  the  indictment  must  have  been  special.  The  bur- 
glarious entry  could  not  have  been  charged  to  have  been  made  in  Onon- 
daga without  a  variance;  and  if  it  had  stated  it  to  have  been  made  in 
Cayuga,  according  to  the  fact,  without  a  statement  that  the  property 
had  been  brought  into  Onondaga,  it  would  have  appeared  that  the 
courts  of  the  latter  county  had  no  jurisdiction  to  try  the  offense. 

The  difference  between  the  two  cases  is  this:  Burglaries  may  be 
tried  out  of  their  proper  counties  in  certain  special  cases ;  that  is. 
where  the  goods  burglariously  taken  are  carried  into  another  county 
by  the  offenders.  But  this  is  by  positive  law,  and  not  because  the 
burglary  was  actually  committed  in  the  county  where  the  indictment 
is  found,  or  in  judgment  of  law  is  considered  to  have  been  committed 
there.  The  fact  must  therefore  be  set  out  which  brings  the  case  within 
the  statute ;  but  in  the  case  of  an  indictment  for  a  simple  larceny, 
found  in  a  county  into  which  the  thief  has  carried  the  property  stolen 
in  another  county,  the  law  adjudges  that  the  offense  was  in  truth  com- 
mitted there,  and  hence  there  is  no  occasion  for  a  statement  in  the 
pleading  of  what  occurred  in  the  other  county.     *     *     * 

Judgment  afifirmed.^ 

3  In  State  v.  MoGraw.  87  Mo.  IGl  (lS8.o),  it  was  held  that  a  law  was  un- 
fonstitiitional  which  authorized  a  prosecution  for  burglary  in  a  county  other 
than  that  in  which  the  burglary  was  committed,  into  which  the  goods  ac- 
quired by  the  burglary  were  taken. 


Ch.  2)  VENUE.  lU 

REGINA  V.  ROGERS. 

(Court  of  Crliiiinal  Appeal,  1877.     14  Cox,  Cv.  Cas.  22.) 

Ca.'^e  stated  for  the  opinion  of  this  court  by  the  assistant  judge  of 
the  Middlesex  sessions. 

At  a  general  sessions  of  the  peace  for  the  county  of  Middlesex  held 
at  the  Guildhall,  Westminster,  on  the  7  th  day  of  June,  1877,  the  pris- 
oner was  tried  on  an  indictment  which  charged  him  with  having,  when 
he  was  employed  in  the  capacity  of  clerk  or  servant  to  Middleton 
Chapman  and  another,  embezzled  the  sum  of  £10.  17s.  6d.  received 
by  him  on  their  account.*     *     *     '^ 

FiELi>,  J.  I  also  am  of  opinion  that  this  conviction  should  be  af- 
firmed, and  I  have  come  to  this  conclusion  on  the  ground  that  a  ma- 
terial part  of  the  offense  was  committed  in  the  county  of  Middlesex. 
It  was  not  the  duty  of  the  prisoner  to  remit  the  specific  money  which 
he  had  received,  but  it  was  his  duty  to  remit  that  money  or  its  equiva- 
lent at  once  to  his  employers  ;  i.  e.,  in  the  course  of  the  week  in  which 
he  received  it.  On  thg^lSth  ''^^y  o^  April  the  prisoner  received  the 
money  in  question  at  York,  and  on  the  l!>th  ancK'20tirtlie~pfi'soner  was 
at  HuiL^.and  wrote  letters  to  his  employers  in  Lohdon,  saying  nothing 
about  thereceipt  ot  the  money  at  V  oi'lTr — ^  Again  on  the  21st,  when 
at  Doncaster,  lie  wr_Qt£  a  letter  to  hiii^m2lovers  in  London ;  and,  in 
answer  to  a  question  left  to  them,  the  jury  say  that  the  prisoner  in- 
tended that  the  prosecutors  should  understand  from  the  statements  in 
that  letter  that  he  had  not  then  received  the  amount  in  question,  and 
the  prisoner  had  thus  in  effect  rendered  a  willfully  false  account. 
Upon  these  facts  the  question  arises  whether  any  material  part  of 
this  offense  was  committed  in  the  county  of  Middlesex? 

Starting  with  this,  that  the  law  presumes  every  man  to  be  innocent 
till  he  is  proved  to  be  guilty,  I  am  at  a  loss  to  find  any  evidence  of 
the  complete  offense  of  embezzlement  in  Yorkshire,  except  the  writing 
and  posting  there  of  the  letters  addressed  to  the  prisoner's  employers 
in  Middlesex.  On  the  authority  of  Evans  v.  Nicholson,  45  L.  J.  C.  P. 
Ill,  note  4,  which  decided  that  a  letter,  in  which  the  defendant  ad- 
mitted a  debt  and  promised  to  pay  it,  addressed  to  and  received  by 
the  plaintiff  in  the  city  of  London,  was  evidence  of  an  account  stated 
in  the  city  of  London,  I  think  that  the  letter  of  the  21st  day  of  April, 
addressed  to  and  received  by  the  prosecutors,  and  intended  to  act 
on  their  minds,  in  Middlesex,  was  in  effect  an  act  done  by  the  prisoner 
in  Middlesex.  The  case  to  my  mind  is  the  same  as  if  a  man  standing 
in  one  county  with  a  long  spear  or  a  pistol  kills  or  injures  a  man  in 
the  adjoining  county,  or  as  if  a  man  with  one  leg  in  one  county  and 
one  in  another  does  a  criminal  act.  So  as  to  a  letter  posted  in  one 
county  and  received  in  another.     There  may  have  been  evidence  on 

<  Part  of  this  case  is  omitted. 


20  VENUE.  (Ch.  2 

which  the  prisoner  might  have  been  properly  convicted  in  Yorkshire ; 
but  I  am  clearly  of  opinion  that  there  was  evidence  which  justified 
his  conviction  in  Middlesex. 

In  Rex  V.  Burdett,  4  B.  &  Aid.  95,  which  has  been  followed  uni- 
versally, the  libel  was  contained  in  a  letter  written  in  county  L-,  but 
received  in  county  M.,  and  it  was  held  that  the  defendant  might  be 
indicted  in  either  county.  The  case  of  Rex  v.  Taylor,  3  Bos,  &  Pul. 
596,  also  makes  the  matter  very  plain.  In  that  case  the  prosecutor's 
servant  received  10s.  for  him  in  the  county  of  Surrey,  after  which  the 
same  evening  he  returned  to  his  master,  in  the  county  of  Middlesex, 
who  asked  him  if  he  had  brought  the  money,  and  the  prisoner  said  he 
had  not,  and  that  it  had  not  been  paid  to  him ;  and  it  was  held  that  he 
was  properly  indicted  in  the  county  of  Middlesex.  Lord  Alvanley, 
C.  J.,  said :  "The  receipt  of  the  money  was  perfectly  legal,  and  there 
was  no  evidence  that  he  ever  came  to  the  determination  of  appropriat- 
ing the  money  to  his  own  use  until  after  he  had  returned  into  the 
county  of  Middlesex.  It  was  not  proved  that  the  money  was  ever  em- 
bezzled until  the  prisoner  was  in  the  county  of  Middlesex.  *  *  * 
In  such  a  case  as  this,  even  if  there  had  been  evidence  of  the  prisoner 
having  spent  the  money  in  Surrey,  it  would  not  necessarily  confine 
the  trial  of  the  offense  to  the  county  of  Surrey.  But  here  there  is  no 
evidence  of  any  act  to  bring  the  prisoner  within  the  statute  until  he 
was  called  upon  by  his  master  to  account." 

The  act  of  nonaccounting  is  a  continuing  act,  and  extended  in  the 
present  case  to  the  time  of  the  receipt  of  the  prisoner's  letter  of  the 
31st  day  of  April  in  the  county  of  Middlesex.  That  was  the  first 
act  from  which  it  is  possible  to  say  with  certainty  that  the  prisoner 
intended  to  embezzle  the  money.  Maule,  J.,  put  the  matter  in  much 
the  same  way  in  Reg.  v.  Murdock  [5  Cox,  Cr.  Cas.  362]  :  "It  ap- 
pears to  me  that  there  was  evidence  to  go  to  the  jury  that  the  offense 
was  committed  when  the  prisoner  met  his  master  in  Nottingham,  and, 
being  asked  by  him  for  the  money,  did  not  pay  over  the  amount." 
I  think,  therefore,  that  the  conviction  should  be  affirmed. 

Conviction  affirmed.^ 

5  Kelly,  C.  B.,  and  Lindley  and  Manisty,  JJ.,  delivered  concurring  opinions, 
and  Huddleston,  B.,  a  dissenting  opinion. 

By  statute  in  some  states  embezzlement  is  indictable  in  any  county  into 
whicli  the  accused  carries  the  property.  See  Pen.  Code  Cal.,  >§  786 ;  People  v. 
Garcia,  25  Cal.  531  (1864)  ;  Brown  v.  State,  23  Tex.  App.  214,  4  S.  W.  588 
(1887) ;    Code  O.  Proc.  Tex.,  art.  219. 

At  common  law  the  receiver  of  stolen  goods  can  be  prosecuted  only  in  the 
county  where  the  goods  were  first  received  as  stolen  goods.  Roach  v.  State, 
5  Cold.  (Tenn.)  39  (1867). 

By  statute  in  England,  and  in  some  states,  the  receiver  of  stolen  goods 
may  be  prosecuted  either  in  the  coimty  in  which  he  first  received  the  goods 
or  in  any  county  in  which  he  at  any  time  thereafter  had  them.  2  Russ. 
Cr.  238.  See  Wills  v.  People,  3  Parker.  Cr.  R.  (N.  Y.)  473  (1857) ;  Moseley 
V.  State,  36  Tex.  Cr.  R,  578,  37  S.  W.  736,  38  S.  W,  197  (1896).  In  the  absence 
of  a  statute,  the  offense  of  obtaining  goods  by  false  pretense  can  be  prosecuted 
only  in  the  county  where  the  goods  were  first  obtained,  not  in  the  county 


Ch.  2)  VENUE.  21 

If  a  man  were  accessory  before  or  after  the  fact  in  another  county 
than  where  the  principal  felony  was  committed,  at  common  law  it 
was  dispunishable,  but  now  by  the  statute  of  2  &  3  Edw.  VI.,  c.  24, 
the  accessory  is  indictable  in  that  county  where  he  was  an  accessory, 
and  shall  be  tried  there,  as  if  the  felony  had  been  committed  in  the 
same  county. 

1  Hale,  P.  C.  623. 


CARLISLE  V.  STATE. 

(Ck)urt  of  Criminal  Appeals  of  Texas,  1893.    31  Tex.  Or.  R.  537,  21  S.  W.  S.x'^.i 

Hurt,  P.  J.°     *     *     *     jj^  the  city  of  Denison,  Grayson  county, 

between  the  hours  of  1  and  2  o'clock  a.  m.  on  the  night  of  the  28th 

ot  April,  1892,  while  lying  in  bed  with  his  wife  and  infant  child,  W. 

where  the  false  pretense  was  made  (Connor  v.  State,  29  Fla.  -i'jo,  10  South. 
891,  30  Am.  St.  Rep.  126  [1S92J ;  Rex  v.  Butterj',  cited  in  Reg.  v.  Ellis,  [1899 1 
1  Q.  B.  235) ;  nor  in  a  county  into  which  the  goods  are  afterwards  carried 
(Reg.  V.  Stanbury,  9  Cox,  O.  C.  94  [1802]). 

The  proper  venue  in  forgery  is  the  county  where  the  act  of  making  or 
altering  the  instrument  was  done.  Commonwealth  v.  Parmenter,  5  Pick. 
(Mass.)  279  (1827).  And  in  uttering  a  forged  instrument,  the  county  in 
which  the  instrument  was  uttered.  I'eople  v.  Rathbun.  21  Wend.  (N.  Y.)  509 
(1839).  Where  the  forged  instrument  is  sent  by  mail  from  the  county  where 
it  was  forged  to  another  county  where  it  is  used  to  defraud,  the  weight  of 
authority  is  that  the  proper  venue  of  the  uttering  is  the  latter  county,  in 
the  absence  of  a  statute  to  the  contrary  (People  v.  Rathbun,  21  Wend.  [N.  Y.] 
509  [1839] ;  State  v.  Hudson,  13  Mont.  112,  32  Pac.  413,  19  L.  R.  A.  775  [1893]). 
though  some  authorities  are  to  the  effect  that  the  offense  may  be  tried  in  the 
county  where  the  letter  was  mailed  (Perkin's  Case,  2  Lewin,  150  [1820]). 

For  the  venue  in  libel  at  common  law  and  under  statutes,  see  Common- 
wealth V.  Blanding,  3  Pick.  (Mass.)  304,  15  Am.  Dec.  214  (1825) ;  Rex  v. 
Burdett,  4  B.  &  Aid.  95  (1820) :  U.  S.  v.  Smith  (D.  C.)  173  Fed.  227  (19€9). 
In  bigamy:  People  v.  Mosher,  2  Parker,  Cr.  R.  (N.  Y.)  195  (18.55);  Ilouser 
V.  People,  40  Barb.  (N.  Y.)  33  (1800) ;  State  v.  Hughes.  58  Iowa,  105,  11  N.  W. 
700  (1882);  State  v.  Smiley,  98  Mo.  605,  12  S.  W.  247  (1889).  In  attempts: 
Griffin  v.  State,  20  Ga.  493  (1858).  Cf.  State  v.  Terrv,  109  Mo.  001.  19  S.  W. 
200  (1891).     Robbery:    Sweat  v.  State,  90  Ga.  315,  17  S.  R  273  (1892). 

By  St.  7  Geo.  IV,  c.  04,  §  12  (1820),  it  is  provided  that,  where  any  felony  or 
misdemeanor  shall  be  begim  in  one  county  and  completed  in  another,  it 
may  be  dealt  with  in  any  of  the  said  counties  in  the  same  manner  as  if  it  had 
been  actually  and  wholly  committed  therein.  Similar  statutes  have  been 
enacted  in  the  United  States.  See  Connor  v.  State,  29  Fla.  4.">.">,  10  South. 
891,  30  Am.  St.  Rep.  126  (1892).  Section  134  of  the  Code  of  Criminal  Pro- 
cedure of  New  York  provides:  "When  a  crime  is  committed,  partly  in  one 
county  and  partly  in  another,  or  the  acts  or  effects  thereof,  constituting  or 
requisite  to  the  consunmiation  of  the  offense,  occur  in  two  or  more  counties, 
the  jurisdiction  is  in  either  county."  See  People  v.  Mitchell,  49  App.  Div.  531, 
03  N.  Y.  Supp.  522  (1900).     Affirmed  in  108  X.  Y.  004,  01  N.  E.  182  (1901). 

The  Constitution  of  the  United  States  provides  as  to  crimes  against  the 
United  States:  "The  trial  of  all  crimes  *  *  *  shall  be  held  in  the  state 
where  the  said  crimes  shall  have  been  committed ;  but  when  not  committed 
within  any  state,  the  trial  shall  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed."     Article  3,  §  2,  cl.  3. 

"Where  a  county  is  divided,  a  criminal  act  done  before  the  division  is  to 
be  prosecuted  in  the  particular  new  county  in  which  is  the  place  of  the  of- 
fense."    White.  P.  J.,  in  Hernandez  v.  State,  19  Tex.  App.  408  (1885). 

6  Part  of   this   case  is  omitted. 


22  VENUE.  (Ch.2 

T.  Sharman  was  shot  with  a  shotgun  by  some  person  standing  upon  a 
ladder  placed  against  the  house,  shooting  over  the  top  of  the  window 
sash,  which  had  been  lowered  about  six  inches.  Charles  Luttrell  was 
indicted  as  principal,  tried,  and  convicted  of  murder  of  the  first  de- 
gree with  the  death  penalty,  appealed  to  this  court,  and  the  judgment 
was  affirmed.  On  May  25,  1892-,  John  T.  Carlisle  was  indicted,  being 
charged  as  an  accomplice,  also,  for  the  murder  of  W.  T.  Sharman, 
was  on  the  28th  of  October,  1892.  tried  and  convicted  of  murder  in  the 
first  degree,  with  the  death  penalty  assessed  against  him  also.  From 
this  conviction  and  judgment  he  appeals. 

The  acts  constituting  appellant  an  accomplice  occurring  in  Collin 
county,  counsel  for  appellant  contends  that  Grayson  county,  the  coun- 
ty of  the  homicide,  was  without  authority  to  try  the  case.  If  an  ac- 
complice to  a  felony  be  guilty  of  a  distinct  offense  from  the  felony 
committed  by  his  principal,  the  position  of  counsel  is  well  taken.  We 
have  no  definition  of  a  crime  named  or  called  "accomplice,"  but  we 
are  informed  by  our  Code  what  acts  and  things  will  make  a  person 
doing  them  an  accomplice  to  all  felonies  to  which  there  can  be  an 
accomplice.  We  are  aware  that  there  are  numerous  opinions  of  learn- 
ed courts  strongly  intimating  that  an  accessory  before  the  fact  (our 
accomplice)  is  guilty  of  a  distinct  offense  from  that  of  his  principal. 
We  desire  to  notice  the  reason  or  legal  ratiocination  of  these  opinions. 

The  following  proposition  is  supported  by  a  strong  line  of  authori- 
ties :  Accessory  before  the  fact  in  one  state,  to  crime  committed  in 
another,  cannot  be  punished  in  the  state  where  the  substantive  crime 
is  committed.  The  reasoning  by  which  this  proposition  is  sustained 
is  that,  as  the  acts  constituting  a  person  an  accessory  occurred  in  a 
state  other  than  that  in  which  the  principal  committed  the  crime,  the 
state  of  the  substantive  crime  cannot  punish  those  acts  or  the  perpe- 
trators, because  done  beyond  the  jurisdiction  of  the  state  in  which  the 
crime  is  committed  by  the  principal.  Let  us  examine  this  subject,  in 
the  light  of  the  same  authorities  which  support  the  above  proposition, 
a  little  further. 

A.  lives  in  Texas.  He  procures  B.,  who  also  lives  in  Texas,  to  go 
to  Missouri,  and  there  commit  an  act  which  is  a  felony  in  Missouri. 
B.  is  innocent  of  anything  wrong  in  what  he  does.  These  same  au- 
thorities hold  that  Missouri  would  have  authority  to  try  and  punish 
A.  Upon  what  ground?  Because  A.  would  be  the  principal.  Again. 
A.  employs  B.  to  go  to  Missouri,  and  there  commit  a  misdemeanor. 
B.,  with  full  knowledge  of  the  criminal  intent  of  A.,  would  be  guilty 
as  a  principal ;  and,  as  it  was  a  misdemeanor,  all  would  be  principals, 
and  Missouri  would  have  authority  to  punish  A.  when  in  fact  A.  had 
done  no  act  whatever  in  Missouri,  except  through  B.  Again,  A. 
sends  B.  to  Missouri  armed  and  equipped  for  the  purpose  of  murder- 
ing C,  being  instigated  thereto  by  A.  Missouri  would  not  have  au- 
thority to  try  and  punish  A.,  because  all  of  his  acts  were  done  in  Tex- 
as, and  because  he  was  accessory  and  not  principal.     Now   for  the 


(;b.  2)  VENUE.  23 

dilemma.  Suppose  Missouri  should  by  statute  make  accessories  before 
the  fact  principals,  as  several  states  have  done,  then  she  would  have 
authority  to  try  and  punish  A.  for  the  murder  of  C  when  A.  had  done 
no  act  in  Missouri  personally,  acting  alone  through  his  guilty  agent,  B. 

What  is  the  result  of  such  doctrine?  It  is  that  the  power  or  au- 
thority to  punish  acts  committed  beyond  the  border  of  the  state,  which 
are  crimes  within  the  state,  depends  upon  technical  distinctions  between 
felonies  and  misdemeanors,  accessories  and  principals,  or  whether 
the  agent  was  guilty  or  innocent,  and  not  upon  the  fact  that  the  crim- 
inal act  was  or  was  not  committed  in  the  state. 

There  is  another  line  of  authorities  resting  upon  solid  foundation. 
The  doctrine  is  this :  That  distinctions  between  accessories  and  prin- 
cipals rest  solely  in  authority,  being  without  foundation  either  in 
natural  reason  or  the  ordinary  doctrine  of  law ;  for  the  general  rule 
of  law  is  that  what  one  does  through  another's  agency  is  to  be  re- 
garded as  done  by  himself.  In  this  state  there  is  no  distinction  be- 
tween the  punishment  of  an  accomplice  and  a  principal.  Why?  Be- 
cause the  crime  is  the  same.  In  morals  there  are  circumstances  in 
which  we  attach  more  blame  to  the  accomplice  than  to  his  principal ; 
as,  when  a  husband  commands  his  wife,  or  master  his  servant,  to  do 
for  his  benefit  a  criminal  thing,  which  in  his  absence  is  done  reluctant- 
ly, through  fear  or  afifection  overpowering  a  subject  mind.  That  the 
crime  committed  by  the  accomplice  is  the  same  as  committed  by  his 
principal  is  evident.  This  proposition  rests  upon  solid  legal  ground. 
In  1  Broom.  Leg.  Max.  (2d  Ed.)  643,  we  find  this  maxim:  "The  prin- 
ciple of  common  law,  'qui  facit  per  alium,  facit  per  se,'  is  of  universal 
application  both  in  criminal  and  civil  cases." 

If  appellant  be  guilty,  of  what  ofifense  is  he  guilty?  He  is  guilty 
of  murder  of  the  first  degree.  Why  is  he  guilty  of  murder  of  the 
first  degree?  Simply  because  he,  with  his  malice  aforethought,  ex- 
pressed through  his  agent  and  tool,  Luttrell,  killed  W.  T.  Sharman. 
He  is  guilty  because  Luttrell's  act  was  his  act ;  Luttrell  being  his 
agent.  Appellant  is  guilty  of  the  murder  of  Sharman  in  Grayson 
county,  though  the  acts  constituting  him  an  accomplice  may  have  all 
occurred  in  Collin  county.  Why?  Because,  when  his  agent  Luttrell 
shot  and  killed  Sharman  in  the  city  of  Denison,  Grayson  county,  it 
was  appellant,  also,  who,  through  Luttrell,  shot  and  killed  him  in 
Grayson  county. 

The  correctness  of  this  doctrine  is  clearly  supported  in  the  death 
of  Uriah,  which  was  caused  by  David.  The  Lord,  speaking  througli 
Nathan,  said  to  David :  "Wherefore  hast  thou  despised  the  command  - 
ment  of  the  Lord,  to  do  evil  in  his  sight?  Thou  hast  killed  Uriah, 
the  Hittite,  with  the  sword,  and  hast  taken  his  wife  to  be  thy  wife, 
and  hast  slain  him  with  the  sword  of  the  children  of  Amnion."  Now, 
David  was  not  present  when  Uriah  was  killed.  David  did  not  with 
his  own  hands  slay  Uriah  with  a  sword,  but  when  Joab  placed  Uriah 
in  a  position  in  which  death  was  inevitable,  and  thereby  had  him  killed. 


24  VENUE.  (Ch.  2 

under  the  command  of  David,  David  killed  Uriah  with  a  sword  just 
as  if  he  had  slain  him  with  his  own  hands. 

We  are  of  opinion  that  the  offense  of  the  accomplice  and  his  prin- 
cipal is  the  same,  and,  if  at  all,  his  crime  was  murder  of  the  first  de- 
gree committed  in  Grayson  county,  and  hence  the  venue  of  the  case 
was  in  Grayson  county. 

Some  further  observations  on  this  subject.  We  desire  to  call  at- 
tention to  the  very  wise  remark  of  Judge  JVIarcy  in  People  v.  Mather, 
4  Wend.  (N.  Y.)  229,  256  (21  Am.  Dec.  122).  He  says:  "Writers 
on  criminal  law  make  some  difference  between  the  offense  of  prin- 
cipal and  accessory,  but  it  is  chiefly  as  to  the  order  and  mode  of 
proceeding  against  them."  By  statute  of  New  York  it  is  provided 
that  all  suits,  informations,  and  indictments  for  any  crime  or  misde- 
meanor, murder  excepted,  should  be  brought  within  three  years  after 
its  commission.  The  word  "murder"  was  held  to  include  as  well  ac- 
cessories before  the  fact  as  principals.  If  an  accomplice  is  guilty  of  a 
distinct  felony  from  that  of  his  principal,  then  a  prosecution  for  being 
an  accomplice  to  murder  is  barred  by  three  years,  for  such  an  offense  is 
not  named  in  the  statute  regulating  limitations. 

The  indictment  is  sufficient,  and  not  obnoxious  to  the  objections 
made  to  it.  The  evidence  complained  of,  under  the  circumstances  of 
this  case,  was  admissible.  The  evidence  amply  supports  the  verdict. 
The  judgment  is  affirmed.    Judges  all  present  and  concurring.^ 


REX  V.  HARRIS. 

(Court  of  King's  Beuch,  1762.     3  Burr.  1330.) 

Mr.  Stowe  and  Mr.  Selwyn  showed  cause  against  the  following 
rule,  which  had  been  made  on  the  motion  of  Mr.  Ashhurst,  viz. : 

"Wednesday  next  after  fifteen  days  from  the  Holy  Trinity,  in  the 
second  year  of  King  George  the  Third.     City  of  Gloucester :     The 

7  See,  also.  People  v.  Wiley,  65  Hun,  624,  20  N.  Y.  Supp.  445  (1892).  But 
see  People  v.  Hodges,  27  Cal.  MO  (1865);  Commonwealth  v.  Pettes,  114 
Mass.  307  (1873). 

"The  offense  is  compounded  of  the  connivance  of  the  accessory  and  the 
actual  killing  by  the  principal  felon,  and  the  crime  of  the  accessory,  though 
inchoate  in  the  act  of  counseling,  hiring,  or  commanding,  is  not  consummate 
until  the  deed  is  actually  done.  The  law  in  such  case  holds  the  accessory 
before  the  fact  to  be  guilty  of  the  murder  itself,  not  as  principal,  it  is  true, 
but  as  accessory  before  the  fact ;  for  it  is  the  doing  of  the  deed,  and  not  the 
counseling,  hiring,  or  commanding,  that  makes  his  crime  complete,  and  it  is 
for  the  murder  that  he  is  indicted,  and  not  for  the  counseling  or  procui'ing. 
We  hold,  therefore,  that  the  locus  in  quo  of  the  offense  of  an  accessory  before 
the  fact  to  the  crime  of  murder  is  the  county  in  which  the  murder  is  done, 
and  that  the  jurisdiction  is  there.  *  *  *  "^jje  crime  of  the  accessory  be- 
fore the  fact  being  only  complete  when  the  murder  is  done,  the  jurisdiction 
for  his  trial  is  where  the  murder  is  done.  This  is  'the  county  in  which  the 
crime  was  committed,  in  the  sense  of  the  Constitution.' "  McWhorter,  J.,  in 
State  V.  Ellison,  49  W.  Va.  74,  38  S.  E.  574  (1901). 


VENUE. 


Ch.2) 

King  against  Gabriel  Harris  and  Two  Others.  Upon  reading  the 
affidavit  of  Thomas  Rickstock  and  others,  it  is  ordered  that  Tuesday 
next  be  given  to  the  defendants,  to  show  cause  why  this  cause  should 
not  be  tried  at  the  next  assizes  to  be  held  in  and  for  the  county  of 
Gloucester,  by  a  jury  of  the  said  county  of  Gloucester  instead  of  the 
city,  upon  notice  of  the  said  rule  to  be  given  to  the  said  defendants  in 

the  mean  time."  .  .      , 

The  affidavit,  upon  which  the  rule  was  obtained,  went  no  furthei 
than  to  swear  generally  "that  they  verily  believed  that  there  could  not 
be  a  fair  and  impartial  trial  had  by  a  jury  of  the  city  of  Gloucester, 
without   giving  any   particular    reasons   or  grounds    for   entertaining 

such  a  belief.  .  .  ,       i  r      i     +, 

The  cause  to  be  tried  was  an  information  against  the  defendants 
(as  aldermen  of  Gloucester)  for  a  misdemeanor,  in  refusing  to  admit 
several  persons  to  their  freedom  of  the  city,  who  demanded  their  ad- 
mission, and  were  entitled  to  it,  and,  in  consequence  of  it,  to  vote  at 
the  then  approaching  election  of  members  of  Parliament  for  that 
city  and  whom  the  defendants  did  admit,  after  the  election  was  over, 
but  would  not  admit  them  until  after  the  election,  and  thereby  de- 
prived them  of  their  right  of  voting  at  it.  ^ 

The  prosecutors  had  moved  for  this  rule,  on  a  supposition  that 
the  citizens  of  the  city  could  not  but  be  under  an  influence  or  preju- 
dice in  this  matter,"  though  there  was,  in  fact,  a  list  returned  up  to 
the  proper  officer  of  above  six  hundred  persons  duly  qualified  to  serve 

on  the  jury.     *     *     *  i    ,     .         .  ur  i 

Mr  Justice  Wilmot  concurred.  There  was  no  rule  better  establish- 
ed he  said  than  "that  all  causes  shall  be  tried  in  the  county,  and  by  the 
neighborhood  of  the  place,  where  the  fact  is  committed."  And  there- 
fore that  rule  ought  never  to  be  infringed,  unless  it  plainly  appears 
that  a  fair  and  impartial  trial  cannot  be  had  in  that  county. 

Where  that  does  plainly  appear,  he  said  he  had  no  doubt  of  the 
court's  having  power  to  depart  from  the  general  rule. 

The  case  of  The  King  against  the  Inhabitants  of  the  County  of  Not- 
tingham, in  2  Lev.  112,  was  a  question  upon  the  right  of  repairing  a 
bridcre  There  the  information  brought  against  them  for  not  repairing 
it  wts  tried  at  the  bar,  by  a  Middlesex  jury.  That  was  done  by  con- 
sent- and  it  was  a  sort  of  civil  right  that  was  to  be  tried.  However, 
if  it  be  considered  as  a  criminal  case,  all  the  inhabitants  of  the  county 

were  interested.  a  i    i. 

The  true  rule  about  suggestions  entered  upon  the  record  is  that 
the  facts  proving  that  a  fair  and  impartial  trial  cannot  be  had  in  the 
ordinary  course  must  be  themselves  suggested  upon  the  record 
Whereas,  here,  it  is  only  a  conclusion  without  premises;  it  is  only 
supposed,  conjectured.  "They  verily  believe"  that  there  cannot  be  a 
fair  and  impartial  trial  by  a  jury  of  the  city,  nor,  in  the  nature  of  the 
thing,  can  such  a  suggestion  be  credited.  It  does  not  follow  that. 
because  a  man  voted  on  one  side  or  on  the  other,  he  would  therefore 


26  VENUE.  (Ch.  2 

perjure  himself,  to  favor  that  party,  when  sworn  upon  a  jury.     God 
forbid !     The  freemen  of  this  corporation  are  not  at  all  interested  in 
the  personal  c\  iduct  of  these  men  upon  this  occasion.    The  same  rea- 
soning would  just  as  well  include  all  cases  of  election  riots. 
I      Therefore,  though  he  had  no  doubt,  he  said,  of  the  authority  and 
jurisdiction  of  the  court  to  award  the  venire  into  another  county,  upon 
a  suggestion  of  facts  clearly  and  fully  proved  to  the  court,  showing 
"that  a  fair  and  impartial  trial  cannot  be  had  in  the  county  where  the 
fact  is  laid,"  yet  he  was  as  clear  that  in  this  case  there  was  no  sort  of 
foundation  for  such  a  suggestion  being  entered. 
Per  Cur' — unanimously. 
Rule  discharged.^ 


HEWITT  V.  STATE. 

(Supreme  Court  of  Florida,  1001.     43  Fla.  194.  30  .South.  71>5.) 

Mabry,  J.^  In  October,  1898,  plaintiffs  in  error,  Dick  Hewitt  and 
Lum  Hewitt,  were  indicted  in  Bradford  county  for  the  murder  of  J. 
T.  Johnson,  and  plaintiff  in  error,  Moss  Hewitt,  and  one  Minnie  Hew- 
itt, were  jointly  indicted  with  them  as  accessories  before  the  fact 
of  said  murder.  Upon  a  trial  of  the  case  in  Bradford  county  in  Janu- 
ary, 1899,  the  jury  acquitted  Minnie  Hewitt  and  disagreed  as  to  the 
other  defendants.  The  case  came  on  for  trial  at  another  term  of  court 
in  Bradford  county,  held  in  October,  1899,  and  after  the  exhaustion 
of  two  special  venires,  one  for  one  hundred  jurors  and  the  other  for 
twenty-five,  and  the  issuance  of  another  for  thirty  jurors,  the  court 
made  the  following  order,  viz. :  "Came  again  the  defendants,  each  in 
his  own  proper  person  and  attended  by  his  counsel,  whereupon,  it 
appearing  to  the  court  that  a  qualified  jury  cannot  be  obtained  in 
this  county  to  try  said  case,  now,  therefore,  it  is  considered  that  .said 
case  be  and  the  same  is  hereby  transferred  and  the  venue  changed  to 
the  circuit  court  of  Duval  county  for  trial."  The  order  further  pro- 
vided for  the  transmission  of  the  necessary  papers  to  Duval  county. 
It  appears  from  a  transcript  of  the  proceedings  in  Bradford  county 
that,  in  addition  to  the  regular  panel  of  jurors  for  the  terms  when 
the  indictment  was  found  and  when  the  mistrial  occurred,  a  special 
venire  of  one  hundred  jurors  was  served  for  the  last-mentioned  term. 
When  the  court  made  the  order  changing  the  venue  on  the  unsuccess- 
ful effort  to  obtain  a  jury,  it  appears  that  defendants  neither  requested 
it  nor  interposed  any  objections  thereto. 

The  case  came  on  for  trial  in  Duval  county  without  any  objection 
on  the  part  of  defendants,  and  thereupon  Dick  Hewitt  and  Lum  Hew- 

8  Part  of  this  case  is  not  reprinted.     Mansfield,  C.   J.,   and   Deuison   and 
Foster,  JJ.,  delivered  concurring  opinions. 
»  Part  of  this  case  is  omitted. 


VENUE.  -• 


Ch.  2) 

itt  were  convicted  of  murder  in  the  second  degree,  and  Moss  Hewitt 
was  convicted  of  being  accessory  before  the  fact  of  said  offense. 

From  the  judgment  of  the  court  imposing  the  sentences  of  the  law 
upon  the  defendants,  writ  of  error  has  been  sued  out  by  them,  and 
two  grounds  of  error  are  presented  for  consideration,  viz. :  First,  the 
court  erred  in  changing  the  venue  from  P^radford  county;  second. 
Moss  Hewitt  should  be  discharged  because  under  the  laws  of  Florida 
a  party  cannot  be  convicted  as  being  an  accessory  before  the  fact  to 
murder  in  the  second  degree. 

Our  present   Constitution    (section   11.  Declaration  of   Rights)  de- 
clares that  "in  all  criminal  prosecutions  the  accused   shall  have  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury,  in  the  county 
where  the  crime  was  committed."     This  provision  was  not  contamed 
in  the  Constitution  of  18G8.     Section  2358,  Revised  Statutes,  provides 
that  "all  criminal  causes  shall  be  tried  in  the  county  where  the  offense 
was  committed,  except  when  otherwise  provided  by  law."     It  is  pro- 
vided in  section  2928.  Revised  Statutes,  that  "the  judge  of  the  circuit 
court  may  order  a  change  of  venue  in  all  criminal  cases,  when  he 
.shall  be  satisfied  that  it  is  impracticable  to  get  a  qualified  jury  to  try 
the  same  in  the  county  in  which  the  crime  was  committed,"  and  the 
change  hereby  authorized  may  be  ordered  as  provided  in  section  2929 
"upon  the  application  either  of  the  prosecuting  attorney  or  of  the  de- 
fendant upon  affidavit  setting  forth  the  necessity  for  such  change." 
By  chapter  1394.  laws  1895,  it  is  enacted  "that  whenever  it  shall  be 
made  to  appear  to  the  satisfaction  of  the  presiding  judge  of  any  of 
the  circuit  courts  of  this  state  that  the  venue  of  any  cause,  civil  or 
criminal,  then  pending  in  such  court,  should  for  any  of  the  grounds 
now  prescribed  by  law  be  changed,  it  shall  be  in  the  power  and  dis- 
cretion of  such  judge  to  change  the  venue  of  such  cause,  civil  or  crim- 
inal, as  the  case  may  be.  from  the  circuit  court  of  the  county  where  such 
cause  is  at  the  time  pending  to  the  circuit  court  of  any  other  county 
within  the  same  circuit,  but  said  judge  shall  not  be  compelled  to  trans- 
fer said  cause  to  any  adjoining  county."    Other  provisions  as  to  trans- 
fer of  causes  need  not  be  mentioned. 

The  provision  in  our  Constitution  in  reference  to  the  right  of  trial 
by  an  impartial  jury  in  the  county  where  the  crime  is  committed  is  an 
important  one  to  the  accused.  At  common  law  a  defendant  had  a 
right  to  be  tried  in  the  county  in  which  the  offense  was  alleged  to  have 
been  committed,  where  he  was  surrounded  by  the  influences  of  a 
good  character  if  he  had  established  one,  and  where  the  witnesses 
were  accessible  for  the  purposes  of  a  trial.  U  an  impartial  trial  could 
not  be  had  in  such  county,  the  practice  was  to  change  the  venue  to 
some  other  county  where  such  trial  could  be  obtained.  The  abuse  of 
the  right  to  change  the  venue  to  the  detriment  of  the  accused  would  be 
serious  to  him.  and  no  doubt  constitutional  provisions  like  ours  were 
designed  to  permanently  secure  this  right  of  trial  by  an  impartial 
jury  in  the  county  where  the  offense  is  alleged  to  have  been  committed. 


28  VENUE.  (Ch.2 

Some  courts  have  held  that  the  guaranty  is  not  only  of  an  impartial 
trial,  but  also  a  trial  in  the  county  where  the  offense  was  committed, 
and  that  it  was  not  competent  for  the  Legislature  to  provide  for  a 
transfer  to  another  county  for  any  cause  without  the  consent  of  the 
accused.  Armstrong  v.  State,  1  Cold.  (Tenn.)  337 ;  Kirk  v.  State,  Id. 
344;  State  v.  Knapp,  40  Kan.  148,  19  Pac.  728.  Where  a  trial  by  an 
impartial  jury  can  be  secured  in  the  county  where  the  crime  is  com- 
mitted the  accused  cannot  be  deprived  of  a  trial  there,  even  under 
sanction  of  legislative  action.  If  he  applied  for  a  change  of  venue  and 
it  be  granted  on  his  request,  it  may  very  properly  be  said  that  he  has 
waived  the  right  and  no  question  can  arise  in  reference  to  it. 

We  do  not__think  it  was  the  purpose  of  the  framers  of  the  Constitu- 
tion  to  force^trial  in  a  county  where  an  tirrpai^ial  jury  cannot  be  had, 
as  to  do  so  would  defeat  the  greater  aiTd~rrrore  important  right  of  a 
speedy  and  public  trial  by  an  mipartial  jury.  State  v.  Miller,  15  Minn. 
344  (Gil.  277).  Our~s!atUte  is  Comprehensive  enough  to  authorize  the 
court  to  direct  a  change  of  venue  when  an  impartial  jury  cannot  be 
secured  in  the  county  where  the  offense  is  alleged  to  have  been  com- 
mitted, and  limiting  it  to  the  impossibility  of  securing  an  impartial 
jury  in  that  county,  we  think  it  is  constitutional.  It  is  not  contended 
in  this  case  that  an  actual  necessity  for  the  change  did  not  exist  when 
the  order  changing  the  venue  was  made.  The  only  point  of  contention 
under  this  head  is  that  the  law  authorizing  the  change  was  unconstitu- 
tional. The  record  clearly  indicates  that  the  trial  court  put  the  question 
of  obtaining  an  impartial  jury  in  Bradford  county  to  actual  test,  and 
in  such  a  case  we  do  not  conceive  that  the  provision  of  our  Constitu- 
tion was  intended  as  a  barrier  against  the  change.  The  act  of  the 
Legislature  may  and  should  have  effect  in  so  far  as  it  does  not  con- 
flict with  the  Constitution,  and  to  the  extent  of  authorizing  a  change 
under  circumstances  disclosed  in  this  case  we  are  of  opinion  that 
there  is  no  conflict.  Care  should,  however,  always  be  exercised  to 
avoid  any  deprivation  of  the  right  of  the  accused  to  his  constitutional 
mode  of  trial  in  applications  to  change  the  venue  without  his  con- 
sent.    *     *     * 

Finding  no  error  in  the  points  presented,  the  judgment  must  be 
affirmed;  and  it  is  so  ordered.^" 

10  See,  also.  State  v.  Miller,  15  Minn.  344,  Gil.  277  (1870).  Contra,  State  v. 
Denton,  6  Cold.  (Tenn.)  539  (1869) ;  State  v.  Kludig,  55  Kan.  113,  39  Pac.  1028 
(18^5). 

The  matter  of  change  of  venue  for  prejudice  in  the  county  is  now  generally 
regulated  by  statute.  Whether  the  application  for  such  change  shall  be 
granted  is  usually  made  to  rest  in  the  sound  discretion  of  the  judge,  to  whom 
the  application  is  properly  made ;  and  the  exercise  of  that  discretion  will 
not  be  reviewed  on  appeal,  unless  it  has  been  clearly  abused.  Smith  v.  State, 
145  Ind.  176,  42  N.  E.  1019  (1896) ;  State  v.  Hawkins.  23  Wash.  289.  63  F^c. 
2.58  (1900).  For  discretion  of  court,  when  the  application  Is  founded  on 
prejudice  of  the  judge,  see  State  v.  Hawkins.  23  W^ash.  289,  63  Pac.  258 
(1900);  State  v.  Thomas,  32  Mo.  App.  159  (1888);  State  v.  Grinstead,  10 
Kan.  App.  78,  61  Pac.  975  (1900). 


Ch.  3)  PROSECUTION.  29 

CHAPTER  III 
PROSECUTION 


SECTION  1.— METHODS  OF  PROSECUTION 


The  next  step  towards  the  punishment  of  offenders  is  their  prose- 
cution, or  the  manner  of  their  formal  accusation.  And  this  is  either 
upon  a  previous  finding  of  the  fact  by  an  inquest  or  grand  jury,  or 
without  such  previous  finding.  The  former  way  is  either  by  present- 
ment or  indictment. 

I.  A  presentment,  generally  taken,  is  a  very  comprehensive  term, 
including  not  only  presentments  properly  so  called,  but  also  inquisi- 
tions of  office  and  indictments  by  a  grand  jury.  A  presentment,  proper- 
ly speaking,  is  the  notice  taken  by  a  grand  jury  of  any  offense  from 
their  own  knowledge  or  observation,  without  any  bill  of  indictment 
laid  before  them  at  the  suit  of  the  king;  as  the  presentment  of  a  nui- 
sance, a  libel,  and  the  like ;  upon  which  the  officer  of  the  court  must 
afterwards  frame  an  indictment  before  the  party  presented  can  be  put 
to  answer  it.  An  inquisition  of  office  is  the  act  of  a  jury  summoned  by 
the  proper  officer  to  inquire  of  matters  relating  to  the  crown  upon 
evidence  laid  before  them.  Some  of  these  are  in  themselves  convic- 
tions, and  cannot  afterward  be  traversed  or  denied ;  and  therefore 
the  inquest  or  jury,  ought  to  hear  all  that  can  be  alleged  on  both  sides. 
Of  this  nature  are  all  inquisitions  of  felo  de  se;  of  flight  in  persons 
accused  of  felony ;  of  deodands  and  the  like ;  and  presentments  of 
petty  offenses  in  the  sheriff's  tourn  or  courtleet,  whereupon  the  pre- 
siding officer  may  set  a  fine.  Other  inquisitions  may  be  afterwards 
traversed  and  examined,  as  particularly  the  coroner's  inquisition  of 
the  death  of  a  man  when  it  finds  any  one  guilty  of  homicide;  for 
in  such  cases  the  offender  so  presented  must  be  arraigned  upon  this 
inquisition  and  may  dispute  the  truth  of  it,  which  brings  it  to  a  kind 
of  indictment,  the  most  usual  and  effectual  means  of  prosecution,  and 
into  which  we  will  therefore  inquire  a  little  more  minutely. 

II.  An  indictment  is  a  written  accusation  of  one  or  more  persons 
of  a  crime  or  misdemeanor,  preferred  to,  and  presented  upon  oath  by, 
a  grand  jury.  To  this  end  the  sheriff  of  every  county  is  bound  to  re- 
turn to  every  session  of  the  peace,  and  every  commission  of  oyer  and 
terminer,  and  of  general  gaol  delivery,  twenty-four  good  and  lawful 
men  of  the  county,  some  out  of  every  hundred,  to  inquire,  present,  do, 
and  execute  all  those  things  which  on  the  part  of  our  lord  the  king 
shall  then  and  there  be  commanded  them. 


30  PROSECUTION.  (Ch.  3 

The  remaining  methods  of  prosecution  are,  without  any  previous 
finding-  by  a  jury,  to  fix  the  authoritative  stamp  of  verisimihtude  upon 
the  accusation.  One  of  these,  by  the  common  law,  was  when  a  thief 
was  tai<en  with  the  mainor ;  that  is,  with  the  thing  stolen  upon  him  in 
manu.  For  he  might,  when  so  detected  flagrante  delicto,  be  brought 
into  court,  arraigned  and  tried  without  indictment,  as,  by  the  Danish 
law,  he  might  be  taken  and  hanged  upon  the  spot,  without  accusation 
or  trial.  But  this  proceeding  was  taken  away  by  several  statutes  in 
the  reign  of  Edward  the  Third,  though  in  Scotland  a  similar  process 
remains  to  this  day.  So  that  the  only  species  of  proceeding  at  the 
suit  of  the  king,  without  a  previous  indictment  or  presentment  by  a 
grand  jury,  now  seems  to  be  that  of  information. 

III.  Informations  are  of  two  sorts :  First,  those  which  are  partlx" 
at  the  suit  of  the  king,  and  partly  at  that  of  a  subject ;  and,  secondly, 
such  as  are  only  in  the  name  of  the  king.  The  former  are  usuall}' 
brought  upon  penal  statutes,  which  inflict  a  penalty  upon  conviction 
of  the  offender,  one  part  to  the  use  of  the  king,  and  another  to  the 
use  of  the  informer,  and  are  a  sort  of  qui  tam  actions  (the  nature 
of  which  was  explained  in  a  former  book),  only  carried  on  by  a  crim- 
inal instead  of  a  civil  process,  upon  which  I  shall  therefore  only  ob- 
serve that,  by  the  statute  31  Eliz.  c.  5,  no  prosecution  upon  any  penal 
statute,  the  suit  and  benefit  whereof  are  limited  in  part  to  the  king 
and  in  part  to  the  prosecutor,  can  be  brought  by  any  common  informer 
after  one  year  is  expired  since  the  commission  of  the  offense ;  nor 
on  behalf  of  the  crown  after  the  lapse  of  two  years  longer ;  nor, 
where  the  forfeiture  is  originally  given  only  to  the  king,  can  such 
prosecution  be  had  after  the  expiration  of  two  years  from  the  com- 
mission of  the  offense. 

The  informations  that  are  exhibited  in  the  name  of  the  king  alone 
are  also  of  two  kinds :  First,  those  which  are  truly  and  properly  his 
own  suits,  and  filed  ex  officio,  by  his  own  immediate  officer,  the  At- 
torney General ;  secondly,  those  in  which,  though  the  king  is  the 
nominal  prosecutor,  yet  it  is  at  the  relation  of  some  private  person 
or  common  informer,  and  they  are  filed  by  the  king's  coroner  and  at- 
torney in  the  Court  of  King's  Bench,  usually  called  the  master  of  the 
crown  office,  who  is  for  this  purpose  the  standing  officer  of  the  pub- 
lic. The  objects  of  the  king's  own  prosecutions,  filed  ex  officio  by  his 
own  Attorney  General,  are  properly  such  enormous  misdemeanors  as 
peculiarly  tend  to  disturb  or  endanger  his  government,  or  to  molest 
or  affront  him  in  the  regular  discharge  of  his  royal  functions.  For 
offenses  so  high  and  dangerous,  in  the  punishment  or  prevention  of 
which  a  moment's  delay  would  be  fatal,  the  law  has  given  to  the 
crown  the  power  of  an  immediate  prosecution,  without  waiting  for 
any  previous  application  to  any  other  tribunal,  which  power,  thus 
necessary  not  only  to  the  ease  and  safety  but  even  to  the  very  existence 
of  the  executive  magistrate,  was  originally  reserved  in  the  great  plan 
of  the  English  constitution,  wherein  provision  is  wisely  made  for  the 


Cb.3;  PROSECUTION,  31 

clue  preservation  of  all  its  parts.  The  objects  of  the  other  species  of  . 
informations,  filed  by  the  master  of  the  crown  office  upon  the  complaint 
or  relation  of  a  private  subject,  are  any  gross  and  notorious  misde- 
meanors, riots,  batteries,  libels,  and  other  immoralities  of  an  atrocious 
kind,  not  peculiarly  tending  to  disturb  the  government  (for  those  are 
left  to  the  care  of  the  Attorney  General),  but  which,  on  account  of 
their  magnitude  or  pernicious  example,  deserve  the  most  public  animad- 
version. 

4  Black.  Conim.  301  et  seq. 

A  second  sort  of  proceeding  in  cases  capital  without  indictment  is 
where  an  appeal  is  brought  at  the  suit  of  the  party,  and  the  plaintifif 
is  nonsuit  upon  that  appeal,  yet  the  offender  shall  be  arraigned  at  the 
king's  suit  upon  such  appeal. 

2^  Hale,  P.  C.  149. 

^Xui-^^J^-^J^^^^^  erf  '^^  A- 

(Sumtiile  Court  of  Npw  .Jersev^STS.^    4»i  N.  .T.  Law.  224.) 

Beasley,  TJjy'''''y^m^he  f  aosagreea  upon,  ^t  appears  that  there 
are  two  indictments  in  the  county  of  Passaic  against  the  defendant : 
The  one  for  the  sale  of  ardent  spirits  without  license,  and  the  other 
for  keeping  a  disorderly  house,  by  frequently  selling  therein  ardent 
spirits  contrary  to  law.  Both  offenses  were  committed  in  the  city  of 
Paterson,  in  which  city  there  was,  at  the  time  in  question,  an  ordi- 
nance forbidding  the  keeping  of  a  disorderly  house  within  the  city, 
under  a  penalty  of  $25. 

By  the  act  approved  March  26,  1874  (Rev.  St.  1874,  p.  493).  it  is 
declared  that  the  provisions  of  the  thirty-seventh  section  of  the  act 
concerning  inns  and  taverns,  and  those  of  the  supplements  thereto, 
approved  respectively  March  8,  1848,  and  February  20,  1849,  which 
are  the  clauses  making  it  an  indictable  offense  to  sell  ardent  spirits 
without  license,  shall  not  thereafter  apply  to  offenses  committed  in 
any  of  the  incorporated  cities  of  this  state,  the  ordinances  of  which 
shall  provide  for  the  punishment  of  the  unlicensed  sale  of  spirituous 
liquors,  and  for  the  punishment  of  the  same  on  Sunday.  The  second 
section  of  the  same  statute  enacts  that,  where  the  ordinances  of  such 
cities  provide  for  the  punishment  of  the  offense  of  keeping  a  disorderly 
house,  it  shall  not  thereafter  be  lawful  to  prosecute,  by  indictment,  any 
person  accused  of  keeping  a  disorderly  house  in  such  city,  where  the 
alleged  offense  consists  only  of  the  continuous  or  frequent  violation 
of  the  provisions  of  the  laws  above  mentioned  inhibiting  the  sale  of 
ardent  spirits  by  unqualified  persons.     *     *     * 

Is  the  act  constitutional?  The  keeping  of  a  disorderly  house  is  a 
crime  indictable  at  common  law,  and  in  this  state  it  is  punishable  by 

1  Part  of  this  case  is  omitted. 


32  TROSECUTION.  (Ch.  3 

fine  and  imprisonment  in  the  state  prison.  Therefore  it  is  clear  that  if 
this  offense  can,  for  the  purpose  of  crimination,  trial,  and  punishment, 
be  put  into  the  hands  of  these  municipal  authorities,  it  follows  that  all 
common-law  offenses  of  the  same  grade  can  be,  in  like  manner,  so 
deposited.  This,  I  think,  cannot  be  conceded.  Such  an  arrangement 
would,  in  a  very  plain  way,  infringe  an  important  provision  of  the 
Constitution  of  this  state.  Article  1,  §  9,  of  that  instrument  declares 
that  "no  person  shall  be  held  to  answer  for  a  criminal  offense,  unless 
on  the  presentment  or  indictment  of  a  grand  jury,  except  in  cases  of 
impeachment,  or  in  cases  cognizable  by  justices  of  the  peace,"  etc. 
The  purpose  of  this  clause  was  to  prevent  the  bringing  of  any  citizen 
under  the  reproach  of  being  arraigned  for  crime  before  the  public, 
unless,  by  a  previous  examination  taken  in  private,  the  grand  inquest 
had  certified  that  there  existed  some  solid  ground  for  making  the 
charge.  It  took  from  the  law  officer  of  the  state,  the  Attorney  General, 
one  of  the  established  prerogatives  of  his  office — that  of  filing  his 
information  against  supposed  offenders,  and  thus  putting  them  on 
trial  at  his  own  volition.  The  reputation  of  every  man  was  thus  put 
under  the  care  of  a  single  specified  body.  The  language  of  the  consti- 
tutional clause  is  very  comprehensive,  and  the  specified  exceptions 
show  conclusively  that  it  was  intended  to  cover  the  residue  of  the  en- 
tire field  of  criminal  accusation.  In  the  presence  of  such  a  prohibition, 
how  then  is  it  permissible  to  put  a  man  on  trial  before  a  city  court, 
charged  with  this  common-law  offense,  without  the  preliminary  sanc- 
tion of  a  grand  jury?  If  it  be  said  the  punishment  is  only  a  fine,  the 
answer  is :  The  restraining  clause  in  question  has  nothing  to  do  with 
the  result  or  effect  of  the  trial,  its  object  being  to  save  from  the  shame 
of  being  brought  before  the  bar  of  a  criminal  court,  except  in  the 
authorized  method  after  an  antecedent  inquisition.  I  am  clearly  of 
opinion  that  a  trial  of  a  person  for  this  offense  before  the  municipal 
court  would  be  an  act  utterly  void. 

This  conclusion  also  has  led  me  to  the  further  result  that  the  clause 
of  the  statute  in  question  must  be  held  to  be  a  nullity.  The  declara- 
tion that  was  intended  to  prohibit  the  trial  of  the  offense  of  keeping 
a  disorderly  house  by  an  indictment  is  too  dependent  on  the  establish- 
ment of  another  mode  of  trial  and  punishment  to  permit  it  to  stand  as 
an  independent  provision.  The  repeal  of  the  old  method  of  prosecu- 
tion, and  its  substitute,  are  part  of  a  scheme,  and,  as  the  scheme  fails, 
the  entire  section  must  fail.  The  present  indictment  for  this  crime 
is  sustainable. 

With  regard  to  the  other  indictment,  the  questions  involved  are  of 
a  different  character.  The  offense  of  selling  liquor  without  a  license  is 
a  purely  statutory  offense.  Independently  of  a  prohibition  by  the  Leg- 
islature, such  a  sale  is  neither  immoral  nor  illegal,  and  the  lawmaker, 
therefore,  can  put  it  under  such  control  as  may  be  thought  best.  Not 
being  in  its  nature  an  indictable  offense,  it  can  be  made  punishable  by 
a  penalty,  without  indictment.    Such  is  the  effect  of  the  present  law  in 


Ch.  3)  PROSECUTION.  ,33 

certain  localities,  and  I  can  perceive  nothing  unconstitutional  or  illegal 
in  such  an  arrangement.  This  law,  therefore,  which  gives  the  exclu- 
sive right  of  prosecution  and  punishment  to  the  city  of  Paterson  in 
this  case,  is  valid  and  must  be  sustained. 

The  sessions  should  be  advised  accordingly.- 


RESPUBLICA  v.  GRIFFITHS. 

(Supreme  Court  of  Pennsylvania,  1790.     2  Dall.  112,  1  L.  Ed.  311.) 

Leave  having  been  granted,  on  the  motion  of  Serjeant,  to  file  an 
information  against  the  defendant,  one  of  the  justices  of  the  peace 
for  Chester  county,  it  became  a  question  whether  the  information 
should  be  drawn,  filed  and  prosecuted  by  the  Attorney  General,  or  by 
the  party  at  whose  instance  it  was  awarded. 

The  Attorney  General  (Bradford)  objected  that  it  is  not  the  duty 
of  the  Attorney  General  to  draw  and  file  this  information.  It  must, 
indeed,  be  in  the  name  of  the  commonwealth,  and  the  prosecutor  may 
make  use  of  the  name  of  the  officer,  who  prosecutes  for  the  state. 
But  there  is  in  England  a  known  and  established  distinction  between 
informations  filed  by  the  Attorney  General,  and  those  filed  by  him  at 
the  relation  of  a  private  person,  in  the  name  of  the  master  of  the 
crown  office.  The  former  are  always  filed  ex  officio ;  and  the  court 
will  not,  upon  motion  of  the  Attorney  General,  give  him  leave  to  file 
an  information  against  any  person.  3  Burr,  1818.^  They  cannot  be 
quashed  on  motion  of  the  prosecutor.  Doug.  237.  Nor  is  the  prose- 
cutor liable  for  costs.  But  informations,  at  the  relation  of  private 
persons,  are  in  a  great  measure  private  suits.  They  are  moved  for 
and  conducted,  not  by  the  officers  of  the  crown,  but  by  counsel  em- 
ployed by  the  prosecutor.  The  prosecutor  is,  in  many  cases,  liable 
to  costs.  3  Burr.  1270,  1305.  The  court  will  not  grant  it  where  the 
prosecutor  appears  unworthy.  Burr.  548,  869.  And  on  a  motion  for 
an  information  for  a  libel,  oath  must  be  made  of  the  falsity  of  the 
charges  contained  in  the  libel,  a  circumstance  quite  immaterial,  where 
the  prosecution  is  wholly  on  the  part  of  the  public.  The  prosecutor, 
therefore,  ought  to  be  at  the  expense  and  employ  his  own  counsel, 


2  See,  also.  Natal  v.  Louisiana,  139  U.  S.  621,  11  Sup.  Ct.  63G,  35  L.  Ed.  28S 
(1891). 

"When  the  punishment  will  be  only  an  amercement,  the  presentment  is 
treated,  not  as  an  accusation,  but  as  testimony,  and  conclusive  testimony. 
We  believe  that  In  Henry  Ill's  day  anything  that  we  could  call  a  trial  of 
a  man  upon  an  indictment  for  misdemeanor  was  exceedingly  rare."  Tollock 
and  Mait.  Hist.  Eng.  Law,  II,  049. 

3  Because  such  leave  is  not  necessary,  the  Attorney  General  havnig  him- 
self power  to  exhibit  such  information.     Rei  v.  Phillips,  4  Burr.  2089(1707). 

Mik.Cr.Pr. — 3 


34  PROSECUTION.  (Ch.   3 

in  this  proceeding,  in  which  he  is  really  interested.  If  it  be  the  duty 
of  the  Attorney  General  to  file  this  information,  it  is  his  duty  to 
prosecute  it  also. 

No  informations  (except  those  qui  tarn)  have  hitherto  been  filed 
in  Pennsylvania;  and  it  is  of  consequence  to  settle  this  point.  No 
fees  are  provided  for  the  duty  in  the  bill  of  fees,  and  th^uAttorney 
General  ought  not^^onjlTJs  occasion,  to  be  considered_as_tli£-m£r£L4i"aw- 
er  of  an  informa'tion,  f"or  which Jh^Js  not  to  be  paid,  and  with  the 
f utures;tLOsecution  _ot  whir'^"^-'^  hri'^liothino-  tolda  ~- 

By  The  Court.  The  objection  is  reasonable  and  just.  But,  pro 
forma,  the  Attorney  General" mttst  allow  his  iidiiie  tD~htr  used  by  the 
prosecuton  '  ^^ 


STATE  v.  KELM. 

(Supreme  Court  of  Missouri,  1883.     79  Mo.  515.) 

PhilIvIPS,  C.*  TTi^^  ic^  q  py>^Pi>tAQn  for  petit  brreny^  instituted 
in  justicEVcDTTrt-on  the  affidavit  ol-ar  private-citizen.  On  a  trial  had 
therein  the  defendant  was  fined  $1.  From  this  judgment  he  appealed 
to  the  circuit  court,  where,  on  a  trial  de  novo,  he  was  again  found 
guilty  and  fined  $10.  The  circuit  court  sustained  a  motion  in  arrest 
of  judgment  for  certain  defects  in  the  proceedings  unnecessary  to 
particularize,  as  our  decision  is  placed  upon  other  grounds  fatal  to  the 
proceeding.    The  state  has  brought  the  case  here  on  appeal. 

Section  12,  art.  2,  of  the  state  Constitution  declares  that  ''no  person 
shall,  for  felony,  be  proceeded  against  criminally  otherwise  than  by 
indictment,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in 
the  militia  when  in  actual  service  in  time  of  war  or  public  danger ; 
in  all  other  cases  offenses  shall  be  prosecuted  criminally  by  indictment 
or  information  as  concurrent  remedies." 

In  Ex  parte  Slater,  72  Mo.  102,  this  court  held  that  the  word  "in- 
dictment," as  used  in  said  section,  "has  a  well-defined  meaning,  and 
must  be  accepted  and  understood  as  having  been  inserted  in  the  Con- 
stitution with  the  meaning  attached  to  it  at  common  law."  The  court 
then  quoted  from  Bacon's  Abridgment  and  other  common-law  text- 
writers  to  show  what  were  the  qualities  and  incidents  of  an  indictment 
as  employed  in  the  ancient  proceedings. 

This  being  unquestionably  a  correct  construction  of  the  term  "in- 
dictment" as  used  in  the  Constitution,  it  must  follow  that  the  term 
"information,"  as  employed  in  the  same  section,  should  be  subjected 
to  the  same  common-law  meaning.  The  text-books  are  uniform  in 
defining  an  information  to  be  an  accusation  or  complaint  exhibited 

4  Part  of  this  case  is  omitted. 


Ch.  3)  PROSECUTION.  2^ 

against  a  person  for  some  criminal  offense,  "either  immediately  against 
the  king  or  against  a  private  person,  which,  from  its  enormity  or  dan- 
gerous tendency,  the  public  good  requires  should  be  restrained  and 
punished,  and  differs  principally  from  an  indictment  in  this:  That 
an  indictment  is  an  accusation  found  by  the  oath  of  twelve  men,  where- 
as an  information  is  only  the  allegation  of  the  officer  who  exhibits  it. 
0  Bacon's  Abr.  pp.  167,  170,  172;   Hawk.  P.  C.  2G,  §  4. 

The  information  at  common  law  was  uniformly  exhibited  by  the 
Attorney  General  in  certain  cases,  but  at  his  discretion,  except,  per- 
haps, where  directed  by  the  House  of  Lords  or  House  of  Commons, 
or  some  of  the  high  officials,  as  the  lords  of  the  treasury,  etc.  The 
king's  coroner  and  attorney  in  the  Court  of  King's  Bench,  called  the 
crown  officer,  might  file  informations.  This  he  might  do,  and  usually 
did,  at  the  prompting  of  some  private  individual.  But  no  private  citi- 
zen could  beget  a  criminal  prosecution  on  his  mere  affidavit  or  in- 
formation.^ 1  Bishop,  Crim.  Proc.  (3d  Ed.)  141,  143;  Jacob's  Law 
Diet,  title  "Information."  Bishop  (section  144)  says:  "In  our  states 
the  criminal  information  should  be  deemed  to  be  such,  and  such  only, 
as  in  England  is  presented  by  the  Attorney  or  the  Solicitor  General. 
This  part  of  the  English  common  law  has  plainly  become  common  law 
with  us.  And  as  with  us  the  powers,  which  in  England  are  exercised 
by  the  Attorney  General  and  Solicitor  General,  are  largely  distributetl 
among  our  district  attorneys,  whose  office  does  not  exist  in  England, 
the  latter  officers  would  seem  to  be  entitled,  under  our  common  law,  to 
prosecute  by  information  as  a  right  adhering  to  their  office,  and  with- 
out leave  of  court."  Wharton  lays  down  the  same  doctrine,  v  Crim. 
Pr.  and  Pr.  (8th  Ed.)  §  87.  | 

So  jealous  were  the  English  people,  from  whom  comes  our  com-  , 
mon-law  heritage,  of  their  personal  liberty  and  the  protection  of  due 
process  of  law,  that  they  contended  for  a  time  earnestly  against  the 
summary  proceeding  by  information  as  violative  of  the  Magna  Charta, 
and  threw  around  its  exercise  many  safeguards  against  abuses.  If 
reasons  were  necessary  to  justify  the  conclusion  reached  in  this  opin- 
ion, they  are  numerous  why  no  such  right  should  be  intrusted  to  a 
private  citizen  to  inaugurate  a  proceeding  like  this  upon  his  own 
affidavit.  The  injustice  and  abuse  of  such  process,  left  at  the  caprice, 
spite,  or  malice  of  one  not  under  the  sanction  of  official  duty,  is  ap- 
parent, and  therefore  the  framers  of  the  Constitution  employed  the 
term  "information,"  without  more,  well  understanding  its  common-' 
law  import  and  meaning.  And  we  are  not  authorized,  nor  is  the  Legis- 
lature, to  extend  its  meaning  and  use.     *     *     * 

5  "Informations  at  common  law  (which  are  vory  ancient  in  this  court)  were 
filed  bv  the  coroner,  who  did  it  upon  any  application,  as  a  matter  of  course. 
The  statute  of  4  W.  &  M.  c.  18,  was  therefore  made  to  limit  it,  and  other 
grounds  there  are  by  which  the  court  has  limited  itself."  Mansfield,  C.  J., 
in  Itex  V.  Robinson,  1  "W.  Black.  ,■341  (17G3). 


36  PROSECUTION.  (Ch.  3 

The  proceeding  in  question  should  have  been  dismissed;  but,  as 
the  court  below  arrested  the  judgment,  its  judgment  will  be  affirmed, 
and  the  prosecution  dismissed.    All  concur.^ 


SECTION  2.— LIMITATION  OF  PROSECUTION 


With  regard  to  limitations  as  to  time,  it  is  one  of  the  peculiarities 
of  English  law  that  no  general  law  of  prescription  in  criminal  cases 
exists  amongst  us.  The  maxim  of  our  law  has  always  been,  "Nullum 
tempus  occurrit  regi,"  and,  as  a  criminal  trial  is  regarded  as  an  action 
by  the  king,  it  follows  that  it  may  be  brought  at  any  time. 

2  Stephen's  Hist.  Crim.  Law,  1. 


STATE  V.  DRY  FORK  R.  CO. 

(Supreme   Court  of   Appeals   of   West   Virginia,   1901.     50   W.   Va.    235,   40 

S.  E.  447.) 

Brannon,  P.^  The  Dry  Fork  Railroad  Company,  having  been  con- 
victed in  the  circuit  court  of  Randolph  county  by  the  verdict  of  a 
jury  of  obstructing  a  public  highway  by  maintaining  a  bad  crossing 
where  the  railroad  crossed  the  public  highway,  has  brought  this  writ 
of  error.     *     *     * 

I  think  the  verdict  could  not  be  set  aside  on  the  ground  that  the 
obstruction  was  not  proven  to  have  been  within  a  year  before  the  in- 
dictment. It  is  fairly  shown  that  the  obstruction  continued  up  to  a 
year  before  the  indictment.  It  may  have  begun  longer  back  than  a 
year,  but  that  makes  no  difference,  if  it  continued  within  such  year; 
for  every  day's  continuance  of  a  public  nuisance  is  a  fresh  offense. 
1  Wood,  Nuis.  457 ;  City  of  Valparaiso  v.  Moffitt,  12  Ind.  App.  250, 
39  N.  E.  909,  54  Am.  St.  Rep.  522,  528;  1  Bish.  New  Cr.  Law,  § 
433  (3). 

I  cite  2  Whart.  Cr.  Law,  §  1473,  as  additional  authority  to  show 
the  very  evident  proposition  that,  "to  sustain  an  indictment  for  nui- 
sance in  obstructing  a  road,  the  road  must  first  be  shown  to  be  pub- 
lic, and  not  private." 

6  Accord:     State  v.  Dover,  9  N.  H.  468  (1838). 

In  some  jurisdictions  that  permit  prosecution  by  information,  statutes  re- 
quire that  uo  such  information  shall  be  filed  until  the  accused  shall  have 
had  a  preliminary  examination  before  an  examining  magistrate  or  oflicer, 
unless  accused  is  a  fugitive  from  justice  or  waives  the  examination.  See 
Washburn  v.  People,  10  Mich.  372  (18G2). 

7  Part  of  this  case  is  omitted. 


Ch.  3)  PROSECUTION.  37 

For  want  of  evidence  required  by  our  state  authorities  as  to  this 
point,  we  must  reverse  the  judgment,  set  aside  the  verdict,  and  re- 
mand the  case  for  a  new  trial. ^ 


STATE  V.  LANGDON. 

(Supreme  Court  of  Indiana,  1902.    159  Ind.  377,  65  N.  E.  1.) 

DovvLiNG,  C.  J.  Prosecution  by  affidavit  and  information  for  a  vio- 
lation of  the  following  statute :  "Whoever,  without  cause,  deserts  his 
wife,  child,  or  children,  and  leaves  such  wife,  or  her  child,  or  children, 
a  charge  upon  dn^  Uf  LllU  Wimtles  ot  tnis  state,-4a:_ii!illiout  provision 
for  comfortable^aiippail^  shall  be  fined  not  more  than  one  hundred  dol- 
lars, nor  less  than  ten  dollars."  Burns'  Rev.  St.  1901,  §  2254  (Rev. 
St.  1881,  §  2133;  Horner's  Rev.  St.  1901,  §  2133).  The  affidavit  and 
information  were  filed  May  17,  1902.  The  charge  set  forth  in  each  is 
that  the  appellee  on  July  28,  1894,  at  Knox  county,  Ind.,  without  cause, 
deserted  his  wife  leaving  her  without  provision  for  comfortable  sup- 
port ;  that  the  appellee  and  his  said  wife  thereafter  remained  residents 
of  said  county;  and  that  such  desertion  continued  until  the  filing  of 
the  affidavit  and  information.  A  motion  by  appellee  to  quash  the  af- 
fidavit and  information  was  sustained,  and,  by  the  judgment  of  the 
court,  the  appellee  was  discharged.  The  state  appeals,  and  the  errors 
assigned  and  discussed  are  the  rulings  of  the  court  upon  the  motion 
to  quash  each  count  of  the  affidavit  and  information. 

The  point  made  by  the  appellee  upon  the  motion  to  quash  and  in  this 
court  is  that  the  affidavit  and  information  show  upon  their  face  that 
the  supposed  offense  was  committed  more  than  two  years  before  the 
filing  of  the  affidavit  and  information,  and  therefore  was  barred  by  the 
statute  of  limitations.  Burns'  Rev.  St.  1901,  §  1665  (Rev.  St.  1881, 
§  1596;  Horner's  Rev.  St.  1901,  §  1596).  Counsel  for  thestate  con- 
tend that  the  offense  charged  was  a  continuing  one,  andtliarTTpon  a 
proper  construction  of  the  statute  the  prosecution  could  be  commeiiced 
at  any  time  while  the  desertion  lasted.  To  desert  is  to  forsake  or  aban- 
don with  the  intention  of  not  returning,  and,  under  section  2254,  supra, 
the  crime  consists  in  forsaking  the  wife  under  certain  conditions,  which 
are  particularly  named  in  the  statute.  The  desertion  must  be  without 
cause,  and  the  wife  must  be  left  a  charge  upon  some  county  of  this 
state,  or  without  provision  for  comfortable  support.  Unless  these  con- 
ditions exist  at  the  very  time  the  husband  deserts  his  wife,  the  crim- 
inal offense  defined  in  section  2254,  supra,  is  not  committed.  H  the 
husband  deserts  his  wife  upon  a  sufficient  legal  cause — for  example, 
habitual  drunkenness — and  she  afterwards  reforms,  then,  although  he 

8  Accord:  State  v.  Gilbert,  73  J^Io.  20  (1880).  See.  also,  State  v.  Sloan,  55 
Iowa.  217,  7  X.  W.  516  (1880),  bigamous  cohabitation. 


38  PROSECUTION.  (Ch.  3 

still  refuses  to  live  with  her  and  maintain  her,  he  cannot  be  convicted 
under  the  statute  making  desertion  a  crime.  Or  if  he  abandons  her 
without  cause,  but  with  provision  at  the  time  for  her  comfortable  sup- 
port, he  is  not  subject  to  indictment  for  such  desertion,  although  the 
provision  for  her  comfortable  support  subsequently  fails. 

Tlie  criminal  oft'onoo  oroatcd-  by  section  2254.  supra,  is  not  to  be 
confounded  with  the  violation  of  the  civil  obligation  to  live  with,  and 
to  make  reasonable  provibiuiif5f2lhe_support  of  the  wife.  The  latter 
is  a  continuing-  dULV,  WhiclTexistsTwith  few  exceptions,  as  long  as  the 
relation  of  husband  and  wife  remains.  The  natural  and  probable  de- 
fenses to  an  indictment  or  information  for  the  criminal  desertion  of 
a  wife  are  that  the  husband  did  not  forsake  her,  or  that  he  had  suf- 
ficient cause  for  so  doing,  or  that  he  did  not  leave  her  a  charge  upon 
any  county  in  this  state,  or  without  provision  for  support.  If,  after 
five,  ten,  nrj^-pptY^  3'^ars,  the  husband  might  be  indicted  for  leaving 
his  wiTe,  pToof  of  the  facFthat  He  had  li^iecl  apart  from  her  and  failed 
to  support  her  w^ouIdHSe^easv ;  but  proof  of  the  cause  for  which  he 
abandoned  her,  or  of  the  conditions  existing  at  that  time,  might  be 
difficult  or  nnpossible." 

In  U.  S.  V.  Irvine,  98  U.  S.  450,  25  L.  Ed.  193,  the  defendant  was 
indicted  for  withholding  from  his  principal  and  client  pension  money 
collected  by  him  for  her  under  the  pension  laws  of  the  United  States. 
The  money  was  demanded  by  the  client  December  34,  1870.  The  in- 
dictment was  found  September  15,  1875.  It  was  held  that  the  prose- 
cution was  barred  by  the  statute  of  limitations  of  two  years.  In  the 
course  of  the  opinion  in  that  case.  Miller,  J.,  said :  "But  whatever  this 
may  be  which  constitutes  the  criminal  act  of  withholding,  it  is  a  thing 
which  must  be  capable  of  proof  to  a  jury,  and  which,  when  it  once  ex- 
ists, renders  the  party  liable  to  indictment.  There  is  in  this  but  one 
offense.  When  it  is  committed  the  party  is  guilty,  and  is  subject  to 
criminal  prosecution ;  and  from  that  time,  also,  the  statute  of  limita- 
tions applicable  to  the  offense  begins  to  run.  It  is  unreasonable  to 
hold  that  twenty  years  after  this  he  can  be  indicted  for  wrongfully 
withholding  the  money,  and  be  put  to  prove  his  innocence  after  his 
receipt  is  lost,  and  when,  perhaps,  the  pensioner  is  dead.  But  the  fact 
of  his  receipt  of  the  money  is  matter  of  record  in  the  pension  office. 
He  pleads  the  statute  of  two  years — a  statute  which  was  made  for 
such  a  case  as  this ;  but  the  reply  is :  'You  received  the  money.  You 
have  continued  to  withhold  it  these  twenty  years.  Every  year,  every 
month,  every  day,  was  a  withholding,  within  the  meaning  of  the  stat- 
ute.' We  do  not  so  construe  the  act.  Whenever  the  act  or  series  of 
acts  necessary  to  constitute  a  criminal  withholding  of  the  money  have 
transpired,  the  crime  is  complete,  and  from  that  day  the  statute  of  lim- 
itations begins  to  run  against  the  prosecution." 

Not  only  would  the  defendant  be  placed  at  an  unfair  disadvantage 
if  the  offense  is  held  to  be  a  continuing  one,  and  therefore  not  barred 
by  the  statute,  but  he  would  be  liable  to  successive  prosecutions  as 


Ch.  3)  TKOSECUTION.  39 

long  as  the  abandonment  continued.  Another  result  of  the  construc- 
tion asked  for  by  the  state  is  that  the  act  of  desertion,  thoui^h  not  crim- 
inal at  the  time  it  occurred,  might  afterwards  become  criminal  because 
of  a  change  in  the  financial  circumstances  of  the  wife  or  child.  We 
cannot  believe  that  the  Legislature  intended  these  consequences. 

There  is  no  similarity  between  the  offense  created  by  section  2254^ 
supra,  and  the  misdemeanor  of  creating  a  public  nuisance,  such  as  the 
obstruction  of  a  highway.  In  the  former  case  the  crime  consists  of  a 
single  completed  act,  committed  under  certain  specific  conditions.  In 
the  latter  the  maintenance  of  the  nuisance  is  a  crime,  which  the  law 
forbids  and  punishes.  If  the  statute  under  review^  instead  of  making 
the  desertion  of  a  wife  or  child  a  criminal  oft'ense,  had  declared  that 
a  failure  to  make  reasonable  provision  for  these  persons  should  be  a 
crime,  and  punishable  as  such,  then  a  failure  to  make  such  provision 
without  reasonable  excuse  would  be  a  continuing  offense,  and  it  would 
be  contemporaneous  with  the  continuance  of  the  relations  mentioned 
in  the  statute. 

The  criminal  offense  is  against  the  public,  and  not  against  the  de- 
serted wife  or  child.  It  consists  in  conduct  which  the  law  deems  per- 
nicious to  the  public  morals,  and  likely  to  subject  the  county  to  charges 
for  the  maintenance  of  the  deserted  wife  or  child.  If  innocent  when 
it  occurs,  it  cannot  afterwards  become  criminal.  If  subject  to  prosecu- 
tion as  soon  as  committed,  the  statute  begins  to  run  against  it  at  that 
time.  None  of  the  decisions  in  civil  cases,  where  the  action  was  for 
the  maintenance  of  a  wife  or  child,  applies  here,  for  the  reason  that 
the  obligation  of  the  husband  and  father  to  support  his  wife  and  child 
exists  and  continues  until  suspended  or  discharged  by  law,  while  the 
crime  of  desertion  is  a  single  act,  defined  by  the  statute,  and  capable  of 
being  committed  only  under  the  circumstances  therein  described. 

Our  construction  of  section  2254  is  sustained  by  the  language  of  the 
court  in  State  v.  Rice,  106  Ind.  139,  5  N.  E.  906,  where  it  is  said  that : 
"The  penalty  of  the  statute  is  denounced  against  the  husband  or  father 
who,  without  cause,  deserts  and  leaves  his  wife,  child,  or  children 
without  provision  for  comfortable  support.  Where,  however,  the  wife, 
child,  or  children  are,  at  the  time  of  such  desertion,  left  with  a  com- 
fortable support,  whether  such  provision  was  made  by  the  husband  or 
father  or  is  possessed  in  the  right  of  the  wife,  child,  or  children,  the 
desertion  is  not  criminal  within  the  statute." 

We  find  no  error  in  the  rulings  of  the  court  in  quashing  the  informa- 
tion.    Judgment  affirmed. ° 

9  Accord:    Bigamy,  Gise  v.  Coiiun<>ii\vt>;il(li.  81  Pa.  428  (1S7G). 

In  homicide,  the  statute  begins  to  run  from  the  date  of  the  death,  not  the 
date  of  the  blow.  State  v.  Taylor,  31  La.  Ann.  851  (ISTlt).  In  obtaining 
property  by  false  pretense,  from  the  date  the  property  was  actually  obtained, 
not  the  date  on  wliieli  the  pretense  was  made.  State  v.  Kiley,  Go  N.  J.  Law, 
192,  4G  Atl.  700  (liXK)).  In  conspiracy,  the  cases  are  not  in  accord.  See  U. 
S.  V.  McCord  (D.  C.)  72  Fed.  ir>0  (1S0,">) ;  Commonwealth  v.  Bartilson,  S5 
Pa.  4S2  (1878) ;    Ochs  v.  People,  124  111.  390,  IG  N.  E.  GG2  (1888). 


40  PROSECUTION.  (Ch.  3 

COMMONWEALTH  v.  DUFFY. 

(Supreme  Court  of  Peunsylvauia,  1881.    96  Pa.  506,  42  Am.  Rep.  554.) 

Mr.  Justice  GrKEn.^"  *  *  *  The  next  and  most  important  ques- 
tion is  as  to  the  effect  of  the  act  of  1877  upon  a  case  where  the  for- 
gery was  a  misdemeanor,  and  the  two-year  limitation  had  not  expired 
at  the  time  of  its  passage.^ ^  Such  is  the  present  case,  and  it  presents 
this  exact  question.  The  learned  judge  of  the  court  below  held  that 
to  apply  the  law  to  a  case  in  which  the  offense  had  been  previously 
committed  would  make  it  retroactive,  and,  as  it  related  to  a  criminal 
subject-matter  it  would  be  an  ex  post  facto  law,  and  therefore  void 
under  both  the  federal  and  state  Constitutions.  If  this  view  of  the 
case  were  correct,  the  conclusion  of  the  court  below,  that  the  case  was 
subject  only  to  the  two-year  limitation,  would  be  right,  and  we  should 
be  obliged  to  affirm  the  judgment.  But  we  are  quite  unable  to  agree 
with  the  reasoning  of  the  learned  judge  on  this  subject,  and  have  there- 
fore reached  a  different  conclusion.  The  language  of  the  act  of  1877 
is  as  follows:  "That Jiere,?) f ter  ffte  offense  of  forgery,  whether  the 
same  be  a  misdemeanor  or  a  felony,  shall  not  be  li^  barred  by  the 
statute  of  limitations  when  the  indictment"~tlieretor  sTT5tt-4tave  been 
brought  or  exliiHTtpH.within^ve  years  next~aiter  the  otfense'sTTaH--haye 
been  conimiited."     *     *     *      '  ~        ~~~ 

It  is  argued  by  the  learned  judge  that  the  act  is' ex  post  facto  if  ap- 
plied to  past  offenses,  and  he  bases  his  reasoning  upon  the  very  precise 
and  comprehensive  definition  given  by  the  present  Chief  Justice  in  his 
valuable  edition  of  Blackstone's  Commentaries  (volume  1,  p.  47). 
That  definition  is  as  follows :  "An  ex  post  facto  law  is  one  which  ren- 
ders an  act  punishable  in  a  manner  in  which  it  was  not  punishable  when 
it  was  committed.  Every  law  that  makes  an  act  done  before  the  pass- 
ing of  the  law,  and  which  was  innocent  when  done,  criminal,  or  which 
aggravates  a  crime  and  makes  it  greater  than  it  was  when  it  was  com- 
mitted, or  which  changes  the  punishment  and  inflicts  a  greater  punish- 
ment than  the  law  annexed  to  the  crime  when  committed,  or  which 
alters  the  legal  rules  of  evidence,  and  makes  -less  or  different  testimo- 
ny than  the  law  required  at  the  time  of  the  commission  of  the  offense 
sufficient  in  order  to  convict  the  offender,  falls  within  this  definition." 

The  learned  judge  of  the  court  below  argues  that  it  would  be  alter- 
ing the  legal  rules  of  evidence  to  apply  the  new  bar  of  five  years  to  a 
case  which  was  only  subject  to  the  bar  of  two  years  when  the  offense 
was  committed.  The  reasoning  is  that  the  commonwealth  in  the  one 
case  would  be  required  to  prove  that  the  offense  was  committed  with- 
in two  years,  and  in  the  other  within  five  years,  and,  because  five  years 

10  Part  of  tBis  case  is  omitted. 

11  The  act  of  1860  (P.  L.  p.  450,  §  77)  limited  the  time  of  prosecution  to 
two  years. 


Ch.  3)  PKOSECUTION.  41 

are  more  than  two,  "the  testimony  required  of  the  commonwealth  in 
the  former  case  is  less  than  in  the  latter.''  This  argument  assumes 
that  there  is  something-  more  to  be  proved  than  the  commission  ot  the 
ottense.  But  it  will  be  seen  at  once  that,  whether  the  bar  be  live  years 
or  two  years,  the  proof  of  the  commonwealth  is  precisely  the  same  in 
either  case.  The  period  of  limitation  is  not  a  subject  of  proof  at  all. 
The  commonwealth  proves  that  the  offense  was  committed,  giving  the 
circumstances  in  evidence,  and  necessarily,  as  a  part  of  the  factum,  the 
time  when  it  was  committed.  If,  then,  it  happens  that  the  law  inter- 
poses a  bar  to  a  conviction  if  the  offense  was  committed  more  than  two 
years  before  the  finding  of  the  indictment,  and  such  was  the  fact  in 
a  given  case,  there  can  be  no  conviction.  But,  if  the  bar  were  five 
years,  the  freedom  from  conviction  would  not  arise  till  after  five  years 
had  elapsed.  In  each  case  the  actual  proof  is  precisely  the  same.  The 
commonwealth  proves  no  more  and  no  less  in  one  case  than  in  the 
other.  Hence  both  the  quantum  of  proof  and  the  rules  of  evidence 
are  the  same  in  both  cases,  and  there  is  no  change  in  these  respects  in 
changing  the  time  of  the  bar. 

At  the  time  the  act  of  1877  was  passed,  the  defendant  was  not  free 
from  conviction  by  force  of  the  two  years'  limitation  of  the  act  of  1860. 
He  therefore  had  acquired  no  right  to  an  acquittal  on  that  ground. 
Now  an  act  of  limitation  is  an  act  of  grace  purely  on  the  part  of  the 
Legislature.  Especially  is  this  the  case  in  the  matter  of  criminal  pros- 
ecutions. The  state  makes  no  contract  with  criminals,  at  the  time  of 
the  passage  of  an  act  of  limitation,  that  they  shall  have  immunity  from 
punishment  if  not  prosecuted  within  the  statutory  period.  Such  enact- 
ments are  measures  of  public  policy  only.  They  are  entirely  subject 
to  the  mere  will  of  the  legislative  power,  and  may  be  changed  or  re- 
pealed altogether,  as  that  power  may  see  fit  to  declare.  Such  being 
the  character  of  this  kind  of  legislation,  we  hold  that,  in  any  case 
where  a  right  to  acquittal  has  not  been  absolutely  acquired  by  the  com- 
pletion of  the  period  of  limitation,  that  period  is  subject  to  enlarge- 
ment or  repeal  without  being  obnoxious  to  the  constitutional  prohibi- 
tion against  ex  post  facto  laws.  A  law  enlarging  or  repealing  a  statu- 
tory bar  against  criminal  prosecutions  may,  therefore,  apply  as  well 
to  past  as  to  future  cases  if  its  terms  include  both  classes.  Such  leg- 
islation relates  to  the  remedy  only,  and  not  to  any  property  right  or 
contract  right. 

The  act  of  1877  in  the  present  case  was  legally  operative  to  enlarge 
the  period  of  limitation  as  to  the  defendant ;  he  haying  acquired  no 
right  of  acquittal  by  virtue  of  the  previous  limitation  at  the  time  of  the 
passage  of  the  act.  It  follows  from  these  considerations  that  the  learn- 
ed judge  of  the  court  below  was  in  error  in  entering  judgment  in  favor 
of  the  defendant  on  the  point  reserved,  and  in  arresting  the  judgment. 
That  retroactive  legislation  is  not  necessarily  unconstitutional,  especial- 
ly where  it  only  affects  remedies,  has  been  so  many  times  decirled  that 
a  mere  reference  to  some  of  the  authorities  will  be  sufficient :   Satterlee 


42  PROSECUTION.  (Ch.  3 

V.  Matthewson,  16  Serg.  &  R.  169 ;  Hepburn  v.  Curts,  7  Watts,  300, 
32  Am.  Dec.  760;  Kenyon  v.  Stewart,  44  Pa.  179;  Schenley  v.  Com- 
monwealth, 36  Pa.  29,  78  Am.  Dec.  359 ;  Waters  v.  Bates,  44  Pa.  473. 
Judgment  reversed,  and  record  remanded,  with  this  opinion,  setting 
forth  the  cause  of  reversal,  to  the  court  of  quarter  sessions  of  Craw- 
ford county  for  further  proceedings. 

Statutes  of  limitation  are  generally  held  not  to  apply  to  crimes  committed 
before  the  statute  was  enacted.  People  v.  Lord,  12  Hun  (N.  Y.)  282  (1877). 
Contra:    Commonwealth  v.  Hutchinson,  2  Pars.  Eq.  Cas.  453  (18.50). 

The  defense  of  the  statute,  it  is  generally  held,  is  permissible  under  the 
general  issue  (State  v.  Carpenter.  74  N.  C.  230  [1876] ;  Commonwealth  v. 
Ruffner,  28  Pa.  259  [1857];  Thompson  v.  State,  54  Miss.  740  [1877]).  but 
must  be  pleaded  before  conviction,  or  else  it  will  be  taken  as  waived  (State  v. 
Thrasher,  79  Me.  17,  7  Atl.  814  [1,887] ;  Johnson  v.  U.  S.",  3  McLean,  80.  Fed. 
Oas.  No.  7,418  [1842]).  at  least  unless  it  appear  on  the  face  of  the  indictment 
that  the  offense  was  barred  by  the  statute  and  none  of  the  exceptions  provid- 
ed in  the  statute  to  prevent  its  operation  are  alleged  therein  (:McLane  v. 
State,  4  Ga.  335  [1848]).  Statutes  generally  contain  a  proviso  that  the  statute 
shall  not  apply  where  the  person  flees  the  jurisdiction.    See  cases  supra. 


Ch.  4)  ARREST.  43 

CHAPTER  IV 
ARREST 


SECTION  1.— WHAT  CONSTITUTES  ARREST 


An  arrest  is  the  apprehending  and  first  restraining  of  a  man's  per- 
son, depriving  it  of  his  own  will  and  liberty,  and  may  be  called  the 
beginning  of  imprisonment. 

Dalton's  Country  Justice,  c.  118. 


RUSSEN  V.  LUCAS,  Sherifif,  et  al. 
(Court  of  King's  Bencli,  1824.     1  Car.  &  P.  153.) 

Action  against  the  sheriff  for  an  escape.  The  only  point  in  dispute 
was  whether  a  person  named  Hamer  was  arrested  by  the  sheriff's  of- 
ficer and  escaped. 

The  olificer  having  the  warrant  went  to  the  One  Tun  tavern  in 
Jermyn  street,  where  Hamer  was  sitting.  He  said,  "Mr.  Hamer,  I 
want  you."  Hamer  replied,  "Wait  for  me  outside  the  door,  and  I  will 
come  to  you."  The  officer  went  out  to  w^ait,  and  Hamer  went  out  at 
another  door,  and  got  aw^ay. 

Abbott,  C.  J.  Me^;^^ words  will  not  constitute  an  arrest:  and  if  the 
officer  says.  "I  arrest  vou,"  and  the  party  runs  away,  it  is  no  escape; 
but  if  the  party  acquiesces  in  the  arrest,  and  goes  with  the  officer,  it 
will  be  a  guud  dii^trt^  If  Hamer  had  gone  even  into  the  passage  with 
the  officer,  the  arrest  would  have  been  complete :  but,  on  these  facts, 
if  I  had  been  applied  to  for  an  escape  warrant  I  would  not  have  grant- 
ed it. 

Nonsuit.^ 

iSee,  also.  Baldwin  v.  Murphy,  82  111.  485  (1S76). 

In  Grosse  v.  State,  11  Tex.  App.  o(J4  (1882),  the  marshal  who  had  taken  the 
prisoner  in  charge  testified  that  he  took  charge  of  the  prisoner  in  his  capaci- 
ty of  marshal,  but  that  he  did  not  consider  the  prisoner  under  arrest.  The 
court  said:  "The  question  is  not  so  much  the  intentions  and  opinions  of  the 
marshal  in  regard  to  the  matter,  but  the  actual  situation  of  the  defendant ; 
and  he  was  not  only  in  actual  but  intentional  arrest" 


44  ARREST.  Ch.  4 

REGINA  V.  NUGENT. 

(Dundalk  Spring  Assizes,  186S.     11  Cox,  Cr.  Cas.  64.) 

The  prisoner  was  indicted  for  that  he,  being  lawfully  in  custody  un- 
der a  warrant  of  the  Lords  Justices  of  Ireland,  unlawfully  did  escape 
out  of  the  said  custody.     *     *     * 

Battersby,  J.  *  *  *  Evidence  was  given  that  two  policemen 
had  gone  up  to  the  prisoner's  house,  and  had  met  him  in  the  yard,  and 
asked  him  to  come  into  the  parlor.  On  going  in,  they  said  the  sub-in- 
spector of  police  wanted  to  see  him.  The  prisoner  asked  what  he 
wanted.  They  said  he  would  tell  him  himself  when  he  came.  He  asked, 
"Am  I  to  consider  myself  under  arrest?"  They  said  he  might. 
They  did  not,  however,  tell  him  there  was  a  warrant  for  his  arrest. 
One  of  the  policemen  then  went  away,  and  the  other  remained  in  the 
room  with  the  prisoner.  The  prisoner  asked  if  he  might  go  into  the 
next  room  for  his  dinner.  The  policemen  said,  "No"  but  that  he 
might  have  his  dinner  brought  in  there.  Shortly  after,  Sub-Inspector 
Gardiner  came  in.  He  held  the  warrant  in  his  hand,  and  said  to  the 
prisoner  that  this  was  a  warrant  for  his  arrest.  He  did  not  read  it, 
nor  touch  the  prisoner.  The  prisoner  said,  "Is  my  name  in  it?"  and 
came  forward,  as  though  to  look  at  the  warrant,  turned  the  key  in  the 
door,  and  leaped  out  of  the  window.  He  was  not  arrested  till  nearly 
one  year  and  a  half  afterwards. 

Sub-Inspector  Gardiner  admitted,  on  cross-examination,  that  the 
movements  of  the  prisoner  and  his  conversation  were  not  of  a  nature 
to  imply  submission  to  the  warrant,  but  merely  a  desire  to  gain  time.- 

Falkiner,  Q.  C.,  for  the  prisoner,  submitted  that  there  was  no  evi- 
dence of  an  arrest.  The  policemen  had  made  no  arrest  in  the  first  in- 
stance. The  prisoner  had  merely  waited  for  the  visit  of  the  sub-in- 
spector at  their  request.  Even  if  the  prisoner  was  under  compulsion, 
it  was  not  a  legal  arrest,  as  the  police  had  not  a  warrant,  nor  did  they 
communicate  its  existence  to  the  prisoner.  On  the  arrival  of  the  war- 
rant there  was  no  arrest,  actual  or  constructive.  After  Gardiner's  ar- 
rival, the  prisoner  was  never  put  under  compulsion,  nor  made  any  sub- 
mission. 

His  Lordship  ruled  that  the  arrest  was  perfect.  The  arrest  by  the 
policemen  was  good,  su^etrt  Lo  the  pi'aductio'n  ot  the  warrant  after- 
wards.   On  the  api£aL^f_^r3m^r-with  the  warrant  the  arrest  was 

Convicted.* 

2  Part  of  this  case  is  omitted. 

3  See.  also.  Williams  v.  Jones,  oas.  t.  Hardw.  298  (1735) ;  Shannon  r.. 
Jones,  76  Tex.  141,  13  S.  W.  477  (1890). 


Ch.   4)  ARREST.  45 

SECTION  2.— WHO  MAY  ARREST 


It  has  been  provided  by  the  king  and  by  his  counsel  that  all,  as  well 
knights  as  others,  who  are  of  fifteen  and  more,  ought  to  swear,  that 
*  *  *  if  they  shall  hear  hue  and  cry  *  *  *  |-j^gy  shall  follow 
with  their  households  and  the  men  of  their  land,  *  *  *  ^rij  ^^i^^ 
they  shall  arrest,  as  far  as  may  be  in  their  power,  those  whom  they 
regard  as  suspected  without  waiting  for  the  mandate  of  the  justice 
or  of  the  viscount,  and  that  what  they  shall  have  done  thereupon  they 
shall  certify  to  the  justices  or  the  viscount.* 

Bracton,  fol.  116. 


COMMONWEALTH  v.  CAREY. 

(Supreme   Judicial    Court   of   Massachusetts,    1853.      12    Cush.    246.) 

This  was  an  indictment  for  murder,  tried  at  Cambridge,  June  2, 
1851,  before  the  Chief  Justice,  and  Fletcher  and  Bigelow,  JJ.,  charg- 
ing the  prisoner  with  the  murder  of  George  Heywood,  at  Lincoln,  in 
the  county  of  Middlesex,  the  27th  day  of  December,  1850.     *     *     * 

Shaw,  C.  J.^  *  *  *  Upon  the  question  of  the  legality  of  the 
arrest,  the  opinion  of  the  court  was  that  any  person,  whether  a  police 
officer  or  a  private  person,  may  lawfully  arrest  any  one  guilty  of  a 
felony,  with  a  view  to  bring  him  before  a  magistrate,  that  proceedings 
may  be  further  taken  to  bring  him  to  punishment.® 

There  was  this  difference,  however,  that  a  private  person,  who  ar- 
rests another  on  a  charge  of  felony,  does  it  at  the  peril  of  being  able 
to  prove  a  felony  actually  committed  by  the  person  arrested.'' 

But  if  a  constable  or  other  peace  officer  arrest  a  person  without  a 
warrant,  he  is  not  bound  to  show  in  his  justification  a  felony  actually 

4  "The  orflinary  man  seems  to  have  been  expected  to  be  very  active  in  the 
pursuit  of  malefactors,  and  yet  'to  act  at  his  peril.'  This  may  be  one  of  the 
reasons  why,  as  any  eyre  roll  will  show,  arrests  were  rarely  made,  except 
when  there  was  hot  pursuit  after  a  'hand-having'  thief."  2  Pol.  &  Mait. 
Hist.  Eng.  Law,  581. 

5  Part  of  this  case  is  omitted. 

8  Accord:  On  fresh  pur.suit:  Commonwealth  v.  Grether,  204  Pa.  203,  53 
Atl.  753  (1902) ;    Rex  v.  Ilowarth,  1  Moody,  207  (1828). 

7  Accord:  Siegel,  Cooper  &  Co.  v.  Connor,  70  111.  x\pp.  IIG  (1S07).  The 
more  general  rule  is  stated  by  Savage,  C.  J.,  in  Holley  v.  Mix,  3  Wend.  (N. 
Y.)  350,  20  Am.  Dec.  702  (1820),  as  follows:  "If  an  innocent  person  is  arrested 
upon  suspicion  by  a  private  individual,  such  individual  is  excused  if  a  felony 
was  in  fact  conunitted,  and  there  was  reasonable  ground  to  suspect  the  person 
arrested."  Accord:  Allen  v.  Wright,  8  C.  &  P.  522  (1838) ;  Keuck  v.  Mc- 
Gregor, 32  N.  .1.  Law,  70  (180G)  ;  Teagarden  v.  Graham,  31  Ind.  422  (ISO!))  ; 
Brooks  V.  Commonwealth,  61  Pa.  352,  100  Am.  Dec.  645  (1869) ;  Carr  v.  State, 
43  Ark.  99  (1884). 


46  ARREST.  (Ch.  4r 

committed,  to  render  the  arrest  lawful;  but  if  he  suspects  one  on  his 
own  knowledge  of  facts,  or  on  facts  communicated  to  him  by  others, 
and  thereupon  he  has  reasonable  ground  to  believe  that  the  accused 
has  been  guilty  of  felony,  the  arrest  is  not  unlawful. 

Nor  is  it  necessary,  when  a  third  person  makes  a  complaint  to  a 
peace  officer  against  a  person,  and  gives  him  in  charge  to  the  officer,, 
that  the  accusation  should  in  terms  technically  import  a  felony;  but 
when  the  language  in  its  popular  sense  would  import  such  charge,  it 
is  sufficient,  as  where  one  says  to  a  peace  officer,  I  wish  you  to  take 
such  a  person  in  charge  for  having  in  his  possession  counterfeit  bills, 
the  natural  import  is  that  he  intends  to  charge  the  party  accused  with 
having  in  his  possession  counterfeit  bills,  knowing  them  to  be  counter- 
feit, and  with  an  intent  to  pass  the  same,  without  which  incidents  such 
possession  would  be  innocent,  and  import  no  criminal  charge  at  all. 

But  the  court  were  further  of  opinion  that  a  constable  or  other  peace 
officer  could  not  arrest  one  without  a  warrant  for  a  crime  proved  or 
suspected,  if  such  crime  were  not  an  offense  amounting  in  law  to  fel- 
ony.* 

This  is  the  old  established  rule  of  the  common  law,  adopted  and 
acted  upon  in  this  commonwealth,  by  which  courts  of  justice  are  bound 
to  be  governed,  until  altered  by  the  Legislature;  that  anciently  there 
was  a  broad  and  marked  distinction  between  felony  and  misdemeanor, 
the  former  being  attended  at  common  law  with  forfeiture  of  all  the 
offender's  goods ;  that  by  the  statutes  of  this  commonwealth,  and  es- 
pecially by  the  revised  statutes,  the  line  of  distinction  between  felonies 
and  misdemeanors  was  in  a  great  measure  obliterated,  and  in  many 
instances  the  law  regarded  as  misdemeanors  offenses  of  a  greater  mor- 
al turpitude  than  many  felonies,  yet  it  had  not  changed  the  rule  in 
question,  though  perhaps  it  might  be  more  wise  in  the  Legislature  to 
make  the  rule  in  question  applicable  to  offenses  measured  by  a  differ- 


8  Accord:  S.  A.  &  A.  Ry.  Co.  v.  Griffin,  20  Tex.  Civ.  App.  91,  48  S.  W. 
542  (1898) ;  lu  re  Way,  41  Micli.  299,  1  N.  W.  1021  (1879) ;  Commonwealth 
V.  Wright,  158  Mass.  149,  33  N.  E.  82,  19  L.  R.  A.  20G,  35  Am.  St.  Rep.  475 
(1893).  Except  i.B_h£fiach^s-trf  tiie~iTeace~lvtrea-Jim--Qffioci'  ic  present  at  the 
time  the  hTP.qfh~-nf  t.ke  ppn^.^is  committed.  Coupey  v.  Henley,  2  Esp.  540 
(1796);  Shanley  v.  Wells.  fTTTlr-i'S  (1873);  Pow  v.  Beckuer,  3  Ind.  475 
(1852) ;  Cook  v.  Nethercote,  G  C.  &  P.  741  (183.5) ;  Fox  v.  Gannt,  3  Barn.  & 
Adol.  798  (1832).  Or  ^nless  the  offense  ma-y—he  reasonably  supposed  to 
eventuate  in  a  felonjv_as_vvounding  in  an  affray.  Coupey  v.  Henlev,  2  Esp. 
540  (1796)  ;    Shanley  v?WeTTsn"l  111.  78  (1873). 

Statutes  now  very  ^enei;ally_  allow  arrests  by  officcra  without  warrant 
tor  misdemeanors  done  in  thp  prpspnppjvf  the  officer,  or  on  immediate  pur- 
suit of  thp  offender.  "^O'Brian  v.  State,  12  Ind.  309  (1859) ;  Hanwav  v.  Boult- 
bee,  4  C.  &  P.  3.50  (1830). 

"The  authorities  from  the  Year  Books  down  to  the  most  recent  and  ap- 
proved text-writers  flow  in  one  uniform  course,  and  all  agree  that  a  justice 
of  the  peace,  in  a  criminal  case,  may  authorize  any  person  whom  he  pleases 
to  be  his  officer.  All,  however,  consider  that  it  is  better  to  direct  his  process 
to  the  constable  of  the  place  where  it  is  to  be  executed ;  and  this  because  no 
other  constable  (or,  a  fortiori,  a  private  person)  can  be  compelled  to  execute 
it."    King,  P.,  in  Commonwealth  v.  Keeper,  1  Ashm.  (Pa.)  183  (1828). 


Ch.  4)  ARREST.  47 

ent  standard  of  aggravation,  as  by  being  punishable  in  the  state  prison, 
or  otherwise. 

The  court  further  held,  under  this  rule,  and  as  applicable  to  this 
case,  that  if  Mr.  Heywood  suspected,  or  had  reasonable  cause  to  sus- 
pect, and  acted  on  the  suspicion,  that  the  person  had  stolen  money,  or 
any  other  property,  from  the  ticket  office,  inasmuch  as  such  stealing 
would  have  been  larceny,  and  of  course  felony,  the  arrest  was  lawful, 
and  the  homicide  committed  by  the  person  in  attempting  to  escape 
woulcl  be  murder,  and  not  manslaughter,  and  that  this  would  be  a  ques- 
tion of  fact  for  the  jury.  But,  further,  that  the  breaking  open  of  the 
ticket  office,  though  with  an  intent  to  steal,  but  without  in  fact  steal- 
ing, was  a  misdemeanor,  and  not  a  felony,  and  the  arrest  of  the  prison- 
er for  that  offense,  or  on  a  suspicion  and  belief,  by  a  peace  officer,  that 
he  had  committed  that  offense,  would  not  be  a  lawful  arrest.  It  was 
the  breaking  of  an  office  in  the  daytime,  and  came  under  the  provisions 
of  Rev.  St.  c.  126,  §  13. 

The  court  remarked  that  St.  1804,  c.  143,  §  5,  which  had  been  cited, 
had  denominated  the  breaking  a  shop  in  the  daytime,  under  certain  cir- 
cumstances, a  felonious  offense ;  yet  two  circumstances  rendered  that 
statute  inapplicable  to  the  present  case.  One  was  that  it  was  accom- 
panied with  the  circumstance  that  such  breaking  be  done  when  some 
one  is  in  the  house,  and  putting  such  person  in  fear,  one  of  the  aggra- 
vating circumstances  belonging  to  the  offenses  of  burglary  and  rob- 
bery; and  the  other  was  that  the  statute  has  been  repealed,  without  the 
re-enactment  of  any  similar  provision  describing  it  as  felony,  but  leav- 
ing it,  as  at  common  law,  in  the  class  of  misdemeanors.  If  the  de- 
ceased, therefore,  in  the  present  case,  although  legally  qualified  as  a 
peace  officer,  understood,  suspected,  and  believed  only  that  the  pris- 
oner had)  broken  open  the  ticket  office,  though  with  an  intent  to  steal, 
and,  acting  upon  that  knowledge,  suspicion,  or  belief,  arrested*  the  per- 
son without  a  warrant,  it  was  an  unlawful  arrest. 

In  regard  to  the  letter  sent  by  Blaisdell  to  the  deceased,  the  court 
were  of  opinion  that  it  did  not  charge  a  felony,  so  as  to  make  the  ar- 
rest lawful  without  a  warrant.  It  did  not  state  or  imply  that  the  pris- 
oner had  stolen  anything  from  the  Stony  Brook  depot.  Breaking-  open 
the  depot  would,  of  itself,  be  an  oft'ense  for  which  the  perpetrator 
would  be  liable  to  a  severe  punishment,  but  in  character  it  was  a  mis- 
demeanor, and  not  a  felony;  and,  therefore,  charging  the  prisoner 
with  having  broken  open  that  depot  did  not  directly,  or  by  implication, 
charge  a  felonious  offense,  for  which  he  could  lawfully  be  arrested 
without  a  warrant.  It  is  distinguishable  from  the  case  before  men- 
tioned, of  giving  one  in  charge  for  having  counterfeit  notes  in  his  pos- 
session, because  that  charge  necessarily  implies  a  guilty  knowledge 
and  a  guilty  purpose,  which,  if  they  make  the  act  criminal  at  all,  make 
it  a  felonious  one.  Such  were  held  to  be  the  rules  of  law  under  wliich 
the  court  determined  that  the  case  must  go  to  the  jury. 

Upon  the  announcement  of  the  foregoing  rulings,  the  counsel  for 


48  ARREST.  (Ch.  4 

the  prisoner  stated  that  they  were  not  aware  of  any  testimony  which 
would  essentially  modify  or  control  the  case  as  it  was  presented  by  the 
evidence  submitted  on  behalf  of  the  government ;  and  they  proposed 
to  submit  it  to  the  jury  under  the  instructions  of  the  court. 

The  Chief  Justice  then  charged  the  jury  in  conformity  with  the  fore- 
going rulings,  and  they  returned  a  verdict  of  guilty  of  manslaughter. 


STATE  V.  TAYLOR  et  al. 

(Supreme  Court  of  Vermont,  Windsor,  1898.     70  Vt.  1,  39  Atl.  447,  42  L.  R, 
A.  673,  67  Am.  St.  Rep.  648.) 

Indictment  of  G.  O.  Taylor  and  John  O'Donald  for  an  assault  with 
intent  to  kill  and  murder.  Verdict  and  judgment  of  guilty,  and  sen- 
tence imposed  at  the  respondents'  request.  The  respondents  excepted. 
Exceptions  sustained. 

MuNSON,  J.**  The  alleged  assault  was  committed  upon  Paul  Tink- 
ham,  constable  of  Rochester,  and  three  persons  acting  under  him, 
while  they  were  effecting  an  arrest  of  the  respondents  and  two  others, 
without  a  warrant,  on  suspicion  of  felony.  The  officer  acted  upon  in- 
formation received  from  Brandon  by  telephone,  to  the  effect  that  the 
post  office  at  Ticonderoga,  N.  Y.,  had  been  burglarized  the  night  be- 
fore, and  that  four  persons  suspected  of  the  crime  had  left  Forestdale, 
going  in  the  direction  of  Rochester.  When  met  by  the  officer  and  his 
assistants,  the  suspected  party  were  coming  along  the  highway  in  a 
wagon,  driven  by  a  liveryman  from  Forestdale. 

The  jury  have  found,  under  the  charge  of  the  court,  that  when  Tink- 
ham  met  the  respondents'  party  he  said  to  them  that  he  arrested  them 
by  the  authority  of  the  state  of  Vermont,  and  that,  upon  inquiry  being 
made  as  to  which  was  the  officer,  Tinkham  was  designated  as  such  by 
one  of  his  party.  The  remainder  of  the  transaction  must  be  taken  to 
have  been  in  accordance  with  the  testimony  most  favorable  to  the  re- 
spondents' claim.  The  purport  of  this  was  that  one  of  the  respondents' 
party  then  asked  Tinkham  if  he  had  any  papers,  and  that  Tinkham 
thereupon  pulled  a  revolver  from  his  pocket,  saying  that  was  all  the 
papers  he  needed,  at  once  returning  the  revolver  to  his  pocket ;  and 
that  respondent  Taylor  then  said,  with  an  oath,  "You  can't  take  this 
party  without  papers;"  and  that  upon  this  all  four  of  the  suspected 
persons  commenced  to  get  out  of  the  wagon,  some  of  them  firing  at 
the  constable's  party  as  they  did  so. 

The  jury  were  instructed,  in  substance,  that,  if  Tinkham  had  rea- 
sonable cause  to  suspect  that  the  respondents  had  committed  a  bur- 
glary, he  could  arrest  them  without  a  warrant ;  and  that  if  he  told  them 
that  he  arrested  them  by  the  authority  of  the  state  of  Vermont,  and  if 
they  knew  he  was  an  officer,  it  was  their  duty  to  submit ;   and  that,  if 

9  Part  of  this  case  is  omitted.    The  judgment  was  reversed  on  other  gi'ounds. 


Ch.  4)  ARREST.  49 

they  shot  the  officer  under  these  circumstances,  they  were  guilty  of  an 
assault  with  intent  to  murder.  The  respondents  insist  that  the  officer 
had  no  right  to  arrest  without  a  warrant  for  a  felony  committed  in  an- 
other state;  and  that,  if  he  had  that  right,  there  was  a  failure  to  dis- 
close his  authority,  which  justified  their  resistance ;  and  that,  in  any 
event,  the  manner  of  the  arrest  was  such  that  the  grade  of  the  offense 
should  have  been  left  to  the  determination  of  the  jury. 

It  has  been  held  in  most  of  the  states  that,  when  one  charged  with 
the  commission  of  a  felony  in  one  state  escapes  to  another,  he  may  be 
there  arrested  and  detained  before  a  demand  for  his  return  has  been 
made  by  the  governor  of  the  state  from  which  he  has  fled.  In  most  of 
the  cases  where  this  doctrine  has  been  enunciated  the  arrest  was  made 
upon  the  warrant  of  a  magistrate.  But  in  State  v.  Anderson,  1  Hill 
(S.  C.)  327,  it  was  held  that  an  arrest  by  a  private  person,  without  a 
warrant,  could  be  justified  by  showing  prima  facie  that  a  felony  had 
been  committed  in  another  state,  and  that  the  party  arrested  was  the 
perpetrator.  It  is  clearly  the  tenor  of  the  decisions  that  the  machinery 
provided  for  the  arrest  of  local  offenders  is  available  for  the  arrest  of 
fugitives  from  another  jurisdiction;  and  it  must  follow  that,  when  the 
arrest  without  warrant  is  made  by  an  officer,  it  will  be  sufficient  for 
his  justification  if  it  appear  that  he  had  reasonable  cause  to  believe  that 
the  person  arrested  had  committed  a  felony  in  another  state,  although 
more  than  this  may  be  required  for  his  detention,  when  brought  be- 
fore a  magistrate.  So,  in  Ex  parte  Henry,  29  How.  Prac.  (N.  Y.)  185, 
it  was  said  that  the  officers  were  undoubtedly  authorized  to  arrest  the 
prisoner  upon  reasonable  ground  of  suspicion,  although  there  was  no 
proof  on  the  hearing  that  the  suspicion  was  well  founded.  It  is  well 
settled  that  the  person  whose  arrest  is  attempted  must  have  notice  of 
the  authority  and  purpose  of  the  person  who  undertakes  to  arrest  him. 
The  first  case  in  which  this  matter  is  elaborately  treated  is  that  of 
]\Iackaley,  reported  in  Cro.  Jac.  279,  and  more  fully  in  9  Coke,  61. 

It  is  frequently  said  in  the  text-books  and  in  judicial  discussions  that 
an  officer  must  show  his  warrant,  or  state  the  grounds  of  the  arrest, 
if  demanded.  But  an  examination  of  the  authorities  will  show  conclu- 
sively that  this  is  not  a  part  of  the  arrest,  but  a  duty  which  imme- 
diately follows  it.  Upon  submitting  to  the  officer,  the  arrested  party 
is  entitled  to  this  information ;  but  he  cannot  put  ofif  the  arrest,  and 
increase  his  chances  of  escape,  by  requiring  an  explanation  in  advance. 
*  *  *  It  is  evident  from  the  adjudged  cases  that  in  the  rule  above 
stated,  as  to  what  is  essential  in  making  an  arrest,  notice  of  the  of- 
ficer's authority  means  notice  of  his  official  character,  and  not  of  the 
exact  circumstances  which  authorize  the  arrest ;  and  that  notice  of 
his  purpose  relates  to  the  purpose  to  arrest,  and  not  to  the  purpose 
of  the  arrest.  It  is  beyond  question  that,  in  making  an  arrest  by  vir- 
tue of  a  warrant,  the  officer  cannot  be  required  to  show  the  warrant. 
Mik.Cr.Pk. — 4 


50  ARREST.  (Ch.  4 

or  state  the  substance  of  it,  until  the  arrest  is  accomphshed.  In  this 
case  there  was  no  warrant,  and  the  officer  could  arrest  without  one 
only  in  certain  classes  of  cases.  But  we  think  the  officer  was  no  more 
obliged  to  state  the  conditions  which  authorized  him  to  arrest  without 
a  warrant  than  he  would  have  been  to  produce  his  warrant,  or  state 
the  substance  of  it,  in  case  of  an  arrest  on  warrant.  All  that  the  re- 
spondents could  require,  in  the  first  instance,  was  a  statement  suffi- 
cient to  show  that  the  person  who  demanded  their  arrest  was  an  of- 
ficer, acting  in  his  official  capacity.  This  was  clearly  covered  by  the 
designation  of  Tinkham  as  the  officer,  and  by  his  statement  that  he 
arrested  them  by  the  authority  of  the  state  of  Vermont. 

It  appears,  then,  that  the  words  of  arrest  employed  by  the  officer 
were  such  as  entitled  him  to  an  immediate  submission  to  his  authority, 
without  answering  the  question  regarding  papers.  *  *  *  Excep- 
tions sustained,  sentence  vacated,  and  cause  remanded. 


SECTION  3.— RIGHTS  AND  DUTIES  OF  PERSON  MAKING 

ARREST 


MACKALLEY'S  CASE. 

(Ck)urt  of  King's   Bench,  1611.     9  Coke,   65,  b.) 

By  the  king's  command  all  the  judges  of  England  were  ordered  to 
meet  together  to  resolve  what  the  law  was,  upon  the  said  record ;  and 
accordingly  all  the  judges  of  England,  and  barons  of  the  exchequer, 
met  together  the  beginning  of  Hilary  term  now  last  past,  and  heard 
counsel  learned  upon  this  special  verdict,  as  well  of  the  prisoners,  as 
of  the  king;  that  is  to  say,  Serjeant  Harris  the  younger,  Anthony  Diot 
and  Randall  Crewe  of  counsel  with  the  prisoners,  and  Yelverton,  Wa- 
ters, and  Coventry  for  the  king.  And  the  matter  was  very  well  ar- 
gued by  counsel  learned  on  both  sides  at  two  several  days  in  the  same 
term ;  and  divers  exceptions  were  taken  to  the  indictment  and  to  the 
verdict  also. 

First,  against  the  indictment  five  exceptions  were  moved.  (1)  Be- 
cause it  appears  that  the  arrest  was  tortious,  and  by  consequence  the 
killing  of  the  Serjeant  could  not  be  murder,  but  manslaughter,  and  they 
argued  that  the  arrest  alledged  in  the  indictment  was  tortious,  because 
it  was  made  in  the  night,  that  is  to  say,  18  Diem  Nov.  inter  horas  quin- 
tam  et  sextam  post  meridiem,  which  appears  to  the  court  to  be  in  the 
night,  and  the  night  is  a  time  of  rest  and  repose,  and  not  to  arrest  any 
by  his  body,  for  thereof  would  ensue  (as  in  hoc  casu  accidit)  blood- 
shed; for  the  officer  and  minister  of  justice  cannot  have  such  assist- 
ance, nor  can  the  peace  be  so  well  kept  in  the  night,  that  is  to  say,  in 


Ch.  4)  ARKEST.  51 

tenebris,  as  in  the  day,  in  aperta  luce :  and  the  prisoner  cannot  know 
the  officer  or  ministers  of  justice  in  the  night;  nor  can  the  prisoner  so 
soon  find  sureties  for  his  appearance  in  the  night  and  thereby  avoid  his 
imprisonment,  as  he  may  in  the  day:  and  they  cited  11  H.  VII,  5,  a, 
that  the  lord  shall  not  distrain  for  his  rent  or  services  in  the  night. 
But  it  was  answered  by  the  counsel  with  the  king,  and  in  the  end  re- 
solved by  all  the  judges  and  barons  of  the  exchequer,  that  the  arrest 
in  the  night  is  lawful,  as  well  at  the  suit  of  a  subject  as  at  the  king's 
suit;  for  the  officer  or  minister  of  justice  ought  to  arrest  him  when 
he  can  find  him;  for  otherwise  perhaps  he  will  never  arrest  him.  *  *  * 

As  the  officer  or  minister  of  justice  may,  by  force  of  a  warrant  di- 
rected to  him,  arrest  any  at  the  king's  suit  either  for  felony  or  other 
crime  in  the  night,  so  may  he  do  at  a  subject's  suit;  for  the  king  has 
no  more  prerogative  as  to  the  time  to  make  an  arrest,  than  a  subject; 
for  the  arrest  is  to  no  other  intent  than  to  bring  the  party  to  justice; 
and  it  appears  by  the  opinion  of  the  court  in  the  King's  Bench  in  Se- 
maine's  Case  in  the  fifth  part  of  my  Reports,  that  the  sherififs  may 
arrest  in  the  night,  as  well  at  the  suit  of  a  subject,  as  at  the  king's  suit. 
And  in  Heydon's  Case  in  the  fourth  part  of  my  Reports  it  is  resolved, 
that  if  one  kills  a  watchman  in  execution  of  his  office,  it  is  murder, 
and  yet  that  is  done  in  the  night;  and  if  an  affray  be  made  in  the 
night,  and  the  constable,  or  any  other  who  comes  to  aid  him  to  keep 
the  peace,  be  killed,  it  is  murder;  for  when  the  constable  commands 
them  in  the  king's  name  to  keep  the  peace,  although  they  cannot  dis- 
cern or  know  him  to  be  a  constable,  yet  at  their  peril  they  ought  to 
obey  him.^** 

It  was  also  resolved,  that  although  in  truth  between  five  and  six  of 
the  clock  in  November  is  part  of  the  night,  yet  the  court  is  not  bound 
ex  officio  to  take  conusance  of  it,  no  more  than  in  the  case  of  burglary, 
without  these  words,  in  nocte  ejusdem  diei,  or  noctanter. 

2.  It  was  objected,  that  Sunday  is  not  dies  jurisdicus,  and  therefore 
no  arrest  can  be  made  thereon,  but  it  is  the  sabbath,  and  therefore 
thereon  everyone  ought  to  abstain  from  secular  affairs  for  the  better 
worship  and  service  of  God  in  spirit  and  truth.  As  to  that  it  was 
answered  and  resolved,  that  no  judicial  act  ought  to  be  done  on  that 
day,  but  ministerial  acts  may  be  lawfully  executed  on  the  Sunday ;  for 
otherwise  peradventure  they  can  never  be  executed ;  and  God  permits 
things  of  necessity  to  be  done  that  day;  and  Christ  says  in  the  Gos- 
pel, "Bonum  est  benefacere  in  Sabbatho."  *    *    ♦ 

4.  It  was  objected,  that  the  said  arrest  found  by  the  verdict  was 
not  lawful,  for  the  Serjeant  in  this  case  ought  to  have,  when  he  ar- 
rested him,  shewed  at  whose  suit,  out  of  what  court,  for  what  cause  he 
made  the  arrest,  and  in  what  court  it  is  returnable,  to  the  intent,  that 
if  it  be  for  any  execution,  he  might  pay  the  money,  and  free  his  body; 
and  if  it  be  upon  mean  process,  either  to  agree  with  the  party  to  put 

10  Part  of  this  case  is  omitted. 


I 


;52  ARREST.  (Ch.  4 

in  bail  according  to  the  law,  and  to  know  when  he  shall  appear,  as  it 
is  resolved  in  the  Countess  of  Rutland's  Case,  in  the  sixth  part  of  my 
Reports,  f.  54.  But  in  the  case  at  bar  the  serjeant  said  nothing  but 
"I  arrest  you  in  the  king's  name,  at  the  suit  of  Mr.  Radford,"  and  so 
the  arrest  not  lawful,  and  by  consequence  the  offense  is  not  murder. 
As  to  that  it  was  answered  and  resolved,  that  it  is  true  that  it  is  held 
in  the  Countess  of  Rutland's  Case,  that  the  sheriff,  etc.,  or  serjeant 
ought  upon  the  arrest  to  show  at  whose  suit,  etc.,  but  that  is  to  be 
intended  when  the  party  arrested  submits  himself  to  the  arrest,  and 
not  when  the  party  (as  in  this  case  Murray  did)  makes  resistance  and 
interrupts  him,  and  before  he  could  speak  all  his  words,  he  was  by 
them  mortally  wounded  and  murdered,  in  which  case,  the  prisoners 
shall  not  take  advantage  of  their  own  wrong.  It  was  also  resolved, 
that  if  one  knows  that  the  sheriff,  etc.,  has  process  to  arrest  him,  and 
the  sheriff,  etc.,  coming  to  arrest  him,  the  defendant  to  prevent  the 
sherift"'s  arresting  him,  kills  him  with  a  gun  or  any  other  engine  or 
weapon,  before  any  arrest  made,  it  is  murder;  a  fortiori  in  the  case 
at  bar,  when  he  knew  by  the  said  words,  that  the  serjeant  came  to  ar- 
rest him.    *    *    * 

6.  It  was  objected,  that  the  serjeant  at  the  time,  nor  before  the  ar- 
rest showed  the  prisoner  his  mace ;  for  thereby  he  is  known  to  be  the 
minister  of  the  law,  and  from  thence  he  has  his  name,  S.  Serviens  ad 
clavam;  et  non  allocatur  for  two  causes:  (1)  Because  the  jury  have 
found,  that  he  was  serviens  ad  clavam  dicti  vicecomitis,  et  juratus,  et 
cognitus,  et  minister  cur;  and  a  bailiff  sworn  and  known  need  not  (al- 
though the  party  demands  it)  show  his  warrant ;  nor  any  other  special 
bailiff  is  not  bound  to  show  his  warrant,  without  demand  of  it  (8  Edw. 
IV,  14,  a;  14  Hen.  VII,  9,  b;  21  Hen.  VII,  33,  a),  and  where  the  books 
speak  of  a  known  bailiff,  it  is  not  requisite  that  he  be  known  to  the 
party  who  is  to  be  arrested,  but  if  he  be  commonly  known  it  is  suffi- 
cient. (2)  If  notice  was  requisite,  he  gave  sufficient  notice  when  he 
said,  "I  arrest  you  in  the  king's  name,"  etc.,  and  the  party  at  his  peril 
ought  to  obey  him;  and  if  he  has  no  lawful  warrant,  he  may  have  his 
action  of  false  imprisonment.  So  that  in  this  case  without  question  the 
serjeant  need  not  show  his  mace;  and  if  they  should  be  obliged  to 
show  their  mace,  it  would  be  a  warning  for  the  party  to  be  arrested 
to  fly.  •  *    *    * 


ANONYMOUS. 
(Upper  Bench,  1G50.     Style,  238.) 

The  court  was  moved  that  one  was  arrested  upon  a  day  of  thanks- 
giving appointed  by  Parliament,  and  that  he  was  forced  to  put  in  bond 
to  the  sheriff  for  his  appearance,  and  therefore  it  was  prayed  that  the 
party  arrested  might  be  discharged,  and  that  the  bond  given  to  the 
sheriff  might  be  delivered  up. 


Ch.  4)  ARREST.  ^^ 

Roll  the  Chief  Justice,  answered:  Indict  the  bailies  that  made  the 
arrest,  or  bring  your  action  against  them,  if  you  please,  for  we  will 
not  discharge  the  party  arrested.^ ^ 


I 


ANONYMOUS. 
(Upper  Bench,  1653.    Style,  395.) 
The  court  was  moved  to  discharge  one  Cullins,  that  was  arrested 
as  he  was  attending  the  court  to  give  testimony  as  a  witness  in  a  cause, 
and  for  an  attachment  against  the  parties  that  did  arrest  him. 

Gfrman,  Justice  (absente,  Roll,  Chief  Justice).  Take  a  supersede- 
as, and  let  the  parties  show  cause  why^  an  attachment  shall  not  be 
o-ranted  acainst  them  that  arrested  him.^- 


UNITED  STATES  v.  RICE. 

(Circuit  Court,  W.  D.   North  Carolina,  1ST5.     1  Hughes,  5G0,  Fed.  Cas.  No. 

10,153.) 

On  the  15th  of  last  September,  Andrew  Woody,  of  Spring  Creek, 
Madison  county,  was  killed  by  Noah  H.  Rice,  a  United  States  deputy 
marshal,  who  was  endeavoring  to  serve  a  capias  on  him  for  violation 
of  the  internal  revenue  laws.  From  facts  developed  before  the  court 
it  appears  that  Woody  had  expressed  a  determination  to  resist  any 
process  which  might  issue  against  him,  and  had  threatened  to  kill  the 
defendant.  Rice,  if  he  attempted  to  arrest  him.  When  this  officer  came 
upon  Woody,  the  latter  was  armed  with  a  rifle.  His  demeanor  was 
hostile,  and  when  commanded  to  surrender  he  so  acted  as  to  impress 
the  officer  with  the  behef  that  his  intention  was  to  shoot  him,  and  in 
self-defense  he  fired  upon  Woody  with  fatal  effect.  Rice  came  to 
Asheville  and  surrendered  himself  to  the  authorities,  was  examined 
by  Commissioner  Watts  on  application  for  bail,  and  committed  to  jail. 
His  case  was  finally  removed  to  the  United  States  court.  On  Tuesday, 
May  11,  1875,  he  was  placed  upon  trial  for  his  life.  The  jury  hav- 
ing requested   full  instructions   from  the  bench,  they  were  given  as 

follows  bv  , 

Dick,  j."  As  this  is  a  case  of  considerable  importance  to  the  de- 
fendanti  and  also  to  the  due  administration  of  justice,  I  have  deemed 

11  Rv  St  '^  Car  IT  c.  7,  the  service  of  all  processes,  warrants,  orders,  etc., 
on  Sundkv,  were  made  unlawful,  except  for  treason,  felony  or  breach  of  the 
peace  Under  this  statute  it  was  held  that  any  offense  which  subjected  the 
party  to  an  indictment  was  constructively  a  breach  of  the  peace.  See 
reafce  v.  Atwood,  13  Mass.  347  (1810). 

12  See  Carle  v.  Delesdernier.  13  Me.  303,  29  Am.  Dec.  508  (1836)  ;  State  v. 
Polacheck,  101  Wis.  427,  77  N.  W.  70S  (1898). 

13  Part  of  the  charge  is  omitted. 


54  ARREST.  (Ch.  4 

it  proper  to  commit  to  writing  my  instructions  to  the  jury  upon  the 
questions  of  law  involved.    *    *    * 

It  is  conceded  that  the  alleged  homicide  was  committed  by  the  de- 
fendant, and  he  places  his  defense  upon  the  ground  that  he  was  a  reg- 
ular constituted  officer  of  the  United  States,  and  had  in  his  hands  at 
the  time  of  the  homicide  the  process  of  law  which  authorized  and  com- 
manded him  to  arrest  the  deceased  for  a  crime  against  the  United 
States;  that  the  deceased  resisted  the  execution  of  such  process  with 
a  deadly  weapon  in  his  hands,  and  had  manifested  a  purpose  to  use 
such  deadly  weapon  in  resistance ;  and  that  the  homicide  was  neces- 
sarily committed  in  the  attempt  to  make  an  arrest. 

This  defense  necessarily  leads  us  to  inquire  what  protection  the  com- 
mon law  affords  to  ministerial  officers,  and  how  far  they  are  author- 
ized to  go  in  the  performance  of  their  public  duties. 

Social  order  and  political  government  are  dependent  upon  the  ob- 
servance of  law  by  the  citizen.  The  mandates  of  the  law  are  ex- 
ecuted by  officers  provided  for  such  purposes,  and  such  officers  are 
invested  by  the  law  with  the  authority  necessary  to  execute  its  man- 
dates, and  it  affords  them  all  the  protection  possible  in  the  rightful 
performance  of  the  duties  imposed.  This  rule  is  absolutely  necessary 
for  the  advancement  of  justice,  and  is  founded  in  wisdom  and  equity 
and  in  the  principles  of  social  and  political  order.  The  law  must  be 
supreme  within  the  sphere  of  its  operation,  or  its  influence  would  be 
nugatory,  and  there  would  be  no  certain  rule  to  regulate  human  con- 
duct in  society  and  government,  and  all  the  rights  and  liberties  of  citi- 
zens would  soon  be  lost  in  a  chaos  of  anarchy. 

Mr.  Justice  Foster  says:  "Ministers  of  justice  while  in  the  execu- 
tion of  their  offices  are  under  the  peculiar  protection  of  the  law."  Fos- 
ter, 308.  If  an  officer  is  killed  while  performing  his  duty,  the  law 
deems  such  killing  murder  of  malice  prepense. 

This  protection  is  not  confined  to  the  precise  time  when  the  officer 
is  performing  his  official  duty,  but  extends  over  him  while  going  to, 
remaining  at,  and  returning  from  the  place  of  action.  Any  opposition, 
obstruction,  or  resistance  intended  to  prevent  an  officer  from  doing  his 
official  duty  is  an  indictable  offense  at  common  law,  and  the  punish- 
ment is  regulated  by  the  nature  of  the  offense. 

An  officer  is  authorized  to  summons  as  many  persons  as  may  be 
necessary  to  assist  him  in  the  performance  of  his  legal  duties,  and  such 
persons  are  bound  to  obey  such  summons,  and  they  are  under  the  same 
protection  afforded  to  officers,  as  they  are  for  the  time  officers  of  the 
law.  The  law  imposes  upon  private  persons  the  duty  of  suppressing 
affrays,  preventing  felonies  from  being  committed  in  their  presence, 
and  arresting  such  offenders  and  bringing  them  to  justice;  and  such 
private  persons,  while  performing  their  duties,  are  under  the  protec- 
tion of  the  law.  We  may  confidently  lay  down  the  broad  general  prin- 
ciple that,  when  any  person  is  performing  a  public  duty  required  of 
him  by  law,  he  is  under  the  protection  of  the  law.     An  officer  of  the 


Ch.  4)  ARREST.  55 

law  who  has  legal  process  in  his  hands  is  bound  to  execute  it  accord- 
ing to  the  mandate  of  the  writ.  If  he  is  resisted  in  the  performance 
of  this  duty,  he  must  overcome  such  resistance  by  the  use  of  such  force 
as  may  be  necessary  for  him  to  execute  his  duty.  If  necessary,  the 
law  authorizes  him  to  resort  to  extreme  measures,  and  if  the  resist- 
ing party  is  killed  in  the  struggle  the  homicide  is  justifiable.  Garrett's 
Case,  60  N.  C.  144,  84  Am.  Dec.  359.^* 

If  unnecessary  and  excessive  force  is  used,  after  resistance  has  en- 
tirely ceased  and  the  defendant  in  the  writ  has  manifested  his  willing- 
ness to  submit  to  the  mandates  of  the  law  and  be  arrested,  then,  if  the 
said  defendant  is  killed,  the  officer  will  be  guilty  of  manslaughter ;  and 
if  the  blood  had  time  to  cool,  the  killing  would  be  murder.  2  Whar- 
ton, Crim.  Law,  1030,  1031,  and  authorities  referred  to  in  note.^^  If, 
however,  the  defendant  in  the  writ  only  ceases  his  resistance  upon  the 
officer  desisting  from  his  attempt  to  arrest,  and  still  keeps  himself  in 
a  condition  to  renew  the  resistance  with  a  deadly  weapon,  if  the  of- 
ficer should  renew  the  effort  to  arrest,  and  the  officer  cannot  make 
the  arrest  without  great  personal  danger,  he  would  be  justified  in  kill- 
ing the  defendant. 

The  submission  of  the  defendant  in  such  a  case  is  not  complete,  and 
as  long  as  he  refuses  to  be  arrested  he  is  in  a  state  of  resistance ;  and 
if  he  is  armed  with  a  deadly  weapon,  and  has  manifested  an  intent  to 
use  it,  and  still  keeps  the  weapon  in  his  possession  convenient  for  an 
emergency,  and  the  officer  has  reasonable  grounds  for  believing  that 
the  weapon  will  be  used  if  an  arrest  is  attempted,  the  officer  is  not  re- 
quired to  risk  his  life  in  a  rencounter,  or  desist  from  an  effort  to  per- 
form his  duty.  When  a  person  puts  himself  in  an  armed  and  deadly 
resistance  to  the  process  of  the  law,  he  becomes  virtually  an  outlaw, 
and  officers  are  not  required  to  show  him  the  courtesy  of  a  chivalrous 
antagonist  and  give  him  an  open  field  and  fair  fight.  It  is  only  when 
a  criminal  submits  to  the  law  that  it  throws  round  him  the  mantle  of 
protection  and  administers  justice  with  mercy.  It  is  the  duty  of  every 
offender  charged  with  crime  in  due  process  of  law  to  quietly  yield 
himself  up  to  public  justice.  State  v.  Bryant,  65  N.  C.  327;  State  v. 
Garrett,  60  N.  C.  144,  84  Am.  Dec.  359. 

A  known  officer,  in  attempting  to  make  an  arrest  by  virtue  of  a  war- 
rant, is  not  bound  to  exhibit  his  warrant  and  read  it  to  a  defendant 
before  he  secures  him,  if  he  resists;  if  no  resistance  is  offered,  the  of- 
ficer ought  always,  upon  demand  made,  show  his  warrant  to  the  party 
arrested  or  notify  him  of  the  substance  of  the  warrant,  so  that  he  may 
have  no  excuse  for  placing  himself  in  opposition  to  the  process  of  the 

14  Accord:  U.  S.  v.  Jailer,  2  Abb.  (U.  S.)  26.5,  15  Fed.  Cas.  No.  15.403 
(1S67) ;  Smith  v.  State,  59  Arlv.  132.  26  S.  W.  712,  43  Am.  St.  Rep.  20  (1894) ; 
State  of  North  Carolina  v.  Gosnell  (C.  C.)  74  Fed.  734  (1890) ;  Lynn  v.  People, 
170  111.  527,  48  N.  E.  964  (1897).  Contra,  Avhere  arrest  is  for  a  misdemeanor: 
Stephens  v.  Commonwealth  (KJ^)  47  S.  W.  229  (1898). 

15  Accord:  Gosse's  Case,  Vent.  216  (1673);  State  v.  Rose,  142  Mo.  418,  44 
S.  W.  329  (1898). 


^^'^^ 


56  ARREST.  (Ch.  4 

law.  This  is  only  a  rule  of  precaution.  A  defendant  is  bound  to  sub- 
mit to  a  known  officer;  to  yield  himself  immediately  and  peaceably 
into  the  custody  of  the  officer  before  the  law  gives  him  the  right  of 
having  the  warrant  read  and  explained,  when  in  resistance  the  law 
shows  him  no  favor.  A  defendant,  knowing  the  arresting  party  to 
be  an  officer,  is  bound  to  submit  to  the  arrest,  reserving  the  right  of 
action  against  the  officer  in  case  the  latter  be  in  the  wrong.  When  a 
person  acts  in  a  public  capacity  as  an  officer,  it  will  be  presumed  that 
he  was  rightfully  appointed.  1  Wharton  Cr.  Law,  §§  1289,  2\)2o; 
Cooley's  Case,  6  Gray  (Mass.)  350. 

One  who  is  not  a  known  officer  ought  to  show  his  warrant  and  read 
it,  if  required ;  but  it  would  seem  that  this  duty  is  not  so  imperative 
as  that  a  neglect  of  it  would  make  him  a  trespasser  ab  initio,  when 
there  is  proof  that  the  party  subject  to  be  arrested  had  notice  of  the 
warrant,  and  was  fully  aware  of  its  contents,  and  had  made  up  his 
mind  to  resist  its  execution  at  all  hazards.      Garrett's  .Case,  supra. 

The  law,  in  its  humanity  and  justice,  will  not  allow  unnecessary 
force  to  be  used  in  the  execution  of  its  process.  If  a  defendant,  with- 
out any  deadly  weapon  or  manifestation  of  excessive  violence,  makes 
resistance,  an  officer  is  not  justified  in  willfully  shooting  him  down; 
but  if  a  defendant  has  a  deadly  weapon,  and  has  manifested  a  pur- 
pose to  use  it  if  an  arrest  is  attempted,  the  officer  is  not  bound  to 
wait  for  him  to  have  an  opportunity  of  carrying  his  purpose  into  ef- 
fect. If  the  warrant  is  for  a  misdemeanor,  and  a  defendant  attempts 
to  avoid  an  arrest  by  flight,  the  officer  has  no  right  to  shoot  him  down 
to  prevent  escape,  nor  even  after  an  arrest  has  been  made  and  defend- 
ant escapes  from  custody.     Foster's  Case,  1  Lew.  Cr.  Cas.  187.^^ 

The  rule  is  different  in  cases  of  felony.     Bryant's  Case,  supra. '^^ 

If  an  officer  has  process  in  his  hands  issuing  from  a  court  of  com- 
petent jurisdiction  over  the  subject-matter,  authorizing  and  command- 
ing him  to  arrest  a  defendant,  he  is  entitled  to  the  protection  which 
the  laws  afford  officers  acting  under  process,  although  the  process  in 
his  hands  is  informal  and  irregular.  If  the  process  is  illegal  and  void 
■  on  its  face,  or  is  against  the  wrong  person,  or  its  execution  is  attempt- 
ed out  of  the  district  in  which  it  can  alone  be  executed,  then  the  officer 
would  not  be  under  the  protection  of  the  law;^^    but  it  would  seem 

i«  Accord:    Reneati  v.   State.  2  Lea   (TeuD.)   720.   31   Am.  Rep.   62G  (1S70) ; 
llandley  v.  State.  96  Ala.  48.  11  South.  322.  38  Am.  St.  Rep.  81  (1892);    State 
V.  Smith,  127  Iowa,  534,  103  N.  W.  t>44,  70  L.  R.  A.  246,  109  Am.  St.  Rep.  402 
(1905). 
•C-  17  Accord:    Carr  v.  State,  43  Ark.  99  (1SS4). 

18  "A  -warrant  issued  hefore  indictment  must  specify  the  offense  charged, 
the  authority  under  which  it  issues,  the  person  who  is  to  execute  it,  and  the 
person  to  be  arrested."     Msbit,  J.,  in  Brady  v.  Davis,  9  Ga.  73  (1850). 

"By  the  common  law,  a  warrant  for  the  arrest  of  a  person  charged  with 
crime  must  truly  name  him.  or  describe  him  sufficiently  to  identify  him; 
*  *  *  and  by  the  great  weight  of  authority  in  this  country  a  warrant  that 
does  not  do  so  will  not  justify  the  officer  making  the  arrest."  Grav,  J.,  in 
West  V.  Cabell,  153  U.  S.  78.  14  Sup.  Ct.  752,  38  L.  Ed.  643  (1894).     But  see 


Cll.  4)  AKRE8T.  57 

that,  if  he  kills  a  resisting  party  under  such  circumstances,  he  would 
only  be  guilty  of  manslaughter,  unless  he  had  actual  knowledge  of 
his  want  of  authority,  or  acted  from  express  malice. 

I  have  stated  to  you  many  points  of  law  which  do  not  directly  arise 
in  the  case  before  us;  but  it  is  important  that  they  should  be  known 
and  well  understood  in  the  country,  where,  in  recent  years,  so  much 
violence  has  been  committed — violence  in  the  name  of  law  and  vio- 
lence in  the  defiance  of  law. 

The  principles  of  law  involved  in  this  case  having  been  explained 
to  you  by  the  court,  it  is  now  your  duty  to  ascertain  the  facts  fn^m 
the  testimony  and  apply  them  to  the  law  as  laid  down  b}'  the 
court.     *     *     * 

The  jury,  after  a  retirement  of  two  hours,  found  a  verdicl  of  "not 
guilty."  i» 


LEIGH  v.  COLE. 

(Staffordshire  Spring  As.sizes,  18.")a.     G  Cox.  Cr.  Cas.  .^20.) 

The  declaration  alleged  that  the  defendant,  on  the  31st  of  August, 
1852,  assaulted  and  beat  the  plaintiff,  and  did  thereby  break  his  jaw- 
bone, and,  further,  that  the  defendant  unlawfully  imprisoned  the  plain- 
tiff, and  forced  him  to  go  handcuffed  through  the  streets  from  Hanley 
to  Shelton,  and  did  imlawfully  search  the  plaintiff's  clothes.     *    *    *  20 

Wii^iviAMS,  ].,  in  summing  up,  said ;  *  *  *  First,  with  respect 
to  handcuffing,  the  law  undoubtedly  is  that  police  officers  are  not  only 
justified,  but  they  are  bound  to  take  all  reasonably  requisite  measures 
for  preventing  the  escape  of  those  persons  they  have  in  custody  for 
the  purpose  of  taking  them  before  the  magistrates ;  but  what  those 
reasonable  measures  are  must  depend  entirely  upon  circumstances,  up- 
on the  temper  and  conduct  of  the  person  in  custody,  on  the  nature  of 
the  charge,  and  a  variety  of  other  circumstances  which  must  present 
themselves  to  the  mind  of  any  one.  As  to  supposing  that  there  is 
any  general  rule  that  every  one  conveyed  from  the  police  station  to  the 
magistrate's  court  is  to  be  handcuffed  seems  to  me  to  be  an  unjusti- 

Bailey  v.  Wiffsins,  5  Har.  (Del.)  4G2.  fiO  Am.  Dec.  G.")0  (1S.")4) ;    Allen  v.  Leon- 
ard. 28  Iowa,  .529  (1S70)  ;    Tidball  v.  Williams,  2  Ariz.  TjO,  8  Tac.  351  (1885). 

19  In  effeotins  an  arrest  without  a  warrant,  for  a  felony,  the  person  ar- 
resting, whether  he  be  an  officer  or  a  private  person,  may  use  sufficient  force 
to  effect  the  arrest  of  the  felon,  even  to  the  e.Ktent  of  taking  life  if  necessary. 
1  Hale,  P.  C.  587,  588;  Conraddv  v.  I'eople,  5  Parker,  Cr.  II.  234  (18G2).  Cf. 
Kesina  v.  Murphy,  1  Cr.  &  Dix.  20  (1839). 

In  arresting  "iMMl  sii«|^''-ip'i  "''  -j^feloiQ'.  an  officer  (and,  a  fortiori,  a  private      j* 
l)erson)  can  niilr  insfify  K-illhi.^  tTJp  pfM'^on  he  seeks  to  ai-rest  by  proof  that 
the^elony  was  actually  committed  b.v  some  one.     ConraTldV  v.  f»eople,  5  Par- 
kei\  ('r.  i{.  234  (1S(;2).     Cf.  Re-    vTl)adsonr3~T:^r.  &  K.  148  (18.5(1). 

Since  one  arresting  for  a  misdemeanor,  with  a  warrant,  cannot  kill  merely 
to  effect  the  arrest,  in  arresting  for  such  an  offense  without  a  warrant  his 
rights  are  no  greater. 

20  Part  of  this  case  is  omitted. 


58  ARREST.  (Ch,  4 

fiable  view  of  the  law,  and  one  on  which  the  police  officers  are  mis- 
taken. In  many  instances  a  man  may  be  conveyed  before  the  magis- 
trates without  handcuffing  him,  and  taking  him  thus  publicly  through 
the  streets.  On  the  other  hand,  it  is  necessary  to  take  proper  pre- 
cautions in  conveying  a  person  in  custody  to  be  dealt  with  by  the 
magistrates;  and  you  must  say  whether,  looking  at  all  the  circum- 
stances of  the  case,  the  defendant  used  unreasonable  precautions  in 
this  case,  or  used  unnecessary  measures  to  secure  the  safe  custody  of 
the  plaintiff. 

/    With  respect  to  searching  a  prisoner,  there  is  no  doubt  that  a  man 

/when  in  custody  may  so  conduct  himself,  by  reason  of  violence  of  lan- 

Iguage  or  conduct,  that  a  police  officer  may  reasonably  think  it  prudent 

I  and  right  to  search  him,  in  order  to  ascertain  whether  he  has  any 

I  weapon  with  which  he  might  do  mischief  to  the  person  or  commit  a 

I  breach  of  the  peace;    but  at  the  same  time  it  is  quite  wrong  to  sup- 

j  pose  that  any  general  rule  can  be  applied  to  such  a  case.     Even  when 

a  man  is  confined  for  being  drunk  and  disorderly,  it  is  not  correct  to 

say  that  he  must  submit  to  the  degradation  of  being  searched,  as  the 

searching  of  such  a  person  must  depend  upon  all  the  circumstances 

of  the  case.    You  will  consider,  then,  whether  the  case  of  the  plaintiff 

is  one  in  which  a  search  should  have  been  made,  and  if  you  are  of 

opinion  that  it  is  not  such  a  case,  then  you  will  say  what  amount  of 

damages  he  is  entitled  to ;    but  on  the  other  hand,  if  you  think  the 

search  was  properly  made,  and  the  defendant  was  justified  in  making 

it,  then  the  plaintiff  is  not  entitled  to  any  damages  in  respect  of  that 

part  of  the  case ;   and  you  will  adopt  the  same  course  with  respect  to 

the  handcuffing.     *     *     * 

The  jury  (after  retiring)  found  a  verdict  for  the  defendant.  At  the 
same  time  they  (through  the  foreman)  expressed  their  opinion  that 
it  was  improper  to  confine  a  man  charged  with  drunkenness  in  the 
same  cell  with  a  person  charged  with  felony,  and  that  it  was  also  im- 
proper to  handcuff  him  to  another  prisoner  when  taking  him  before 
a  magistrate. 

WiLUAMS,  J.,  thereupon  reminded  the  jury  that  he  had  told  them, 
if  the  defendant  had  been  guilty  of  any  excess  of  duty,  they  might 
give  the  plaintiff  compensation  for  any  injury  he  had  received  thereby. 

The  foreman  of  the  jury  said  they  had  considered  the  matter,  and 
they  only  expressed  their  opinion  with  reference  to  the  future. 

Verdict  for  the  defendant  accordingly. ^^ 

21  Cf.  Common  wealth  v.  Weber,  167  Pa.  153,  31  Atl.  481  (1895). 

"It  is  common  learning  that  an  officer  may,  without  a  precept,  arrest  any 
person  he  finds  committing  an  offense.  It  is  also  well  known  that  he  must 
within  a  reasonable  time,  bring  his  prisoner  before  the  proper  court,  or  obtain 
a  legal  precept  for  detaining  him.  A  failure  to  do  so  may  make  the  officer 
a  trespasser.  Rev.  St.  c.  133,  §  4.  An  officer,  making  an  arrest  upon  a 
criminal  charge,  may  also  take  from  his  prisoner  the  instruments  of  the  crime 
and  such  other  articles  as  may  be  of  use  as  evidence  upon  the  trial.  These 
may  not  be  confiscated  or  destroyed  by  the  officer,  however,  without  some 


Ch.4) 


ARREST. 


59 


SEMAYNE'S  CASE. 

(Court  of  King's  Bench,  1G04.    5  Coke,  91  a.) 

In  an  action  on  the  case  by  Peter  Semayne,  plaintiff,  and  Richard 
Gresham,  defendant,  *  *  *  these  points  were  resolved.  *  *  * 
(3)  In  all  cases  when  the  kingjs  party,  the  sheriff,  if  the  doors  be  not 
open,  may  brea4«-tliU  pai  L)  *niouse,  either  to  arrest  him  or  todo  other 
execution  of  the  knig's  process,  it  otherwiseJHe^annot  enter^  J-Hit 
before  he  breaks' iTTie  (Might  toiigniy  the"Tause  of  his  coming,  and 
to  make  request  to  open  the  doors^  and  that  appears  well  by  the  Stat- 
ute of  Westm.  I,  c.  17  (which  is  but  an  affirmance  of  the  common  law), 
as  hereafter  appears,  for  the  law  without  a  default  in  the  owner  ab- 
hors the  destruction  or  breaking  of  any  house  (which  is  for  the  habi- 
tation and  safety  of  man),  by  which  great  damage  and  inconvenience 
might  ensue  to  the  party,  when  no  default  is  in  him ;  for  perhaps  he 
did  not  know  of  the  process,  of  which,  if  he  had  notice,  it  is  to  be  pre- 
sumed that  he  would  obey  it,  and  that  appears  by  the  book  in  18  Edw. 
II,  Execut.  252,  where  it  is  said  that  the  king's  officer  who  comes  to 
do  execution,  etc.,  may  open  the  doors  which  are  shut,  and  break  them 
if  he  cannot  have  the  keys,  which  proves,  that  he  ought  first  to  demand 
them.    *    *    *  22 

order  or  jndcment  of  a  court.  We  do  not  find  any  authority  or  reason  for 
the  officer  rendering  any  judgment  in  the  matter.  He  holds  the  property, 
as  he  does  the  prisoner,  to  await  and  subject  to  the  order  of  the  court." 
Emery,  J.,  in  Thatcher  v.  Weeks,  79  Me.  548,  11  Atl.  599  (1887). 

2  2  Part  of  this  case  is  omitted. 

Accord:  State  v.  Oliver,  2  Houst.  (Del.)  585  (1855);  State  v.  Mooring,  llu 
N  C  709  20  S.  E.  182  (18.94).  Even  though  the  occupant  know  the  purpose 
for  which  the  officer  comes.  Hall  v.  Hall,  6  Gill  &  J.  (Md.)  38t3  (1834).  But 
see  Commonwealth  v.  Reynolds,  120  Mass.  190,  21  Am.  Rep.  510  (187G). 
The  officer  does  not  become  a  trespasser  ab  initio  if  the  accused  is  in  fact 
not  in  the  house,  even  though  he  is  notified  of  this  fact  by  persons  in  the 
house.     State  v.  Mooring,  supra. 

The  officer  need  not  inform  the  occupant  who  the  person  sought  is,  unless 
such  information  is  demanded.  Commonwealth  v.  Reynolds,  120  Mass.  190, 
21  Am.  Rep.  510  (187G). 

It  seems  that  th^,-iprht  +n  hTPni.-  Hnprs  when  the  arrest  is  on  a  warrant 
extends  to  arrests  fnr  misdenirnn^r^  "^  """]]  ''°  t-^ipiyogj  State  v.  s!t?n*»  1 
Root  (Comi.)  iM  il.!B);  State  v.  Mooring,  supra.  Contra:  Commonwealth 
V.  Supt.  Co.  Prison,  5  Pa.  Dist.  R.  635  (1896). 

Akrest  Without  Warrant.— \^'^lethe^  doors  may  "be  broken  in  the  arrest 
of  a  felon,  without  a  warrant,  see  2  Hawk.  P.  C.  c.  14 ;  1  Hale,  P.  C.  583 ; 
4  Black.  Comm.  292.  ,    .  .. 

Since  a  court  has  no  jurisdiction  over  foreign  sovereigns,  their  ambassa- 
dors, diplomatic  agents,  and  persons  belonging  to  their  suites,  such  persons 
are  exempt  from  arrest  See  Dupont  v.  Pichon,  4  Dall.  321,  1  L.  Ed.  851 
(1805)  •  Musurus  Bey  v.  Gadban,  [1894]  1  Q.  B.  533 ;  Rev.  St.  §§  4062-4005 
(U.  S.  'Comp.  St.  1901,  pp.  27G0-2761). 


60  EXTRADITION.  (Ch.  5 

CHAPTER  V 
EXTRADITION 


STATE  OF  KENTUCKY  v.  DENNISON. 

(Supreme  Court  of  the  United  States,  1800.     24  How.  GO,  16  L.  Ed.  717.) 

A  motion  was  made  in  behalf  of  the  state  of  Kentucky,  by  the  direc- 
tion and  in  the  name  of  the  Governor  of  the  state,  for  a  rule  on  the 
Governor  of  Ohio  to  show  cause  why  a  mandamus  should  not  be  is- 
sued by  this  court,  commanding  him  to  cause  Willis  Lago,  a  fugitive 
from  justice,  to  be  delivered  up,  to  be  removed  to  the  state  of  Ken- 
tucky, having  jurisdiction  of  the  crime  with  which  he  is  char- 
ged.^    *     *     * 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court.  *  *  * 
This  brings  us  to  the  examination  of  the  clause  of  the  Constitution 
which  has  given  rise  to  this  controversy.  It  is  in  the  following  words : 
"A  person  charged  in  any  state  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  state,  shall,  on  de- 
mand of  the  executive  authority  of  the  state  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  state  having  jurisdiction  of  the 
crime." 

Looking  to  the  language  of  the  clause,  it  is  difficult  to  comprehend 
how  any  doubt  could  have  arisen  as  to  its  meaning  and  construction. 
The  words,  "treason,  felony,  t)r  other  crime,"  in  their  plain  and  obvi- 
ous import,  as  well  as  in  their  legal  and  technical  sense,  embrace  every 
act  forbidden  and  made  punishable  by  a  law  of  the  state.  The  word 
"crime"  of  itself  includes  every  offense,  from  the  highest  to  the  lowest 
in  the  grade  of  offenses,  and  includes  what  are  called  "misdemeanors," 
as  well  as  treason  and  felony.  4  Bl.  Com.  5,  6,  and  note  3,  Wendall's 
edition. 

But  as  the  word  "crime"  would  have  included  treason  and  felony, 
without  specially  mentioning  those  offenses,  it  seems  to  be  supposed 
that  the  natural  and  legal  import  of  the  word,  by  associating  it  with 
those  offenses,  must  be  restricted  and  confined  to  offenses  already 
known  to  the  common  law  and  to  the  usage  of  nations,  and  regarded 
as  offenses  in  every  civilized  community,  and  that  they  do  not  extend 
to  acts  made  offenses  by  local  statutes  growing  out  of  local  circum- 
stances, nor  to  ofYenses  against  ordinary  police  regulations.  This  is 
one  of  the  grounds  upon  which  the  Governor  of  Ohio  refused  to  de- 
liver Lago,  under  the  advice  of  the  Attorney  General  of  that  state. 

1  Part  of  this  case  is  omitted. 


Cll^  5)  EXTRADITION.  61 

But  this  inference  is  founded  upon  an  obvious  mistake  as  to  the 
purpose  for  which  the  words  "treason  and  felony"  were  introduced. 
They  were  introduced  for  the  purpose  of  guarding  against  any  restric- 
tion of  the  word  "crime,"  and  to  prevent  this  provision  from  bemg 
construed  by  the  rules  and  usages  of  independent  nations  in  compacts 
for  delivering  up  fugitives  from  justice.  According  to  these  usages, 
even  where  they  admitted  the  obligation  to  deliver  the  fugitive,  per- 
sons who  fled  on  account  of  political  offenses  were  almost  always  ex- 
cepted, and  the  nation  upon  which  the  demand  is  made  also  uniformly 
claims' and  exercises  a  discretion  in  weighing  the  evidence  of  the 
crime,  and  the  character  of  the  offense.  The  policy  of  different  na- 
tions, in  this  respect,  with  the  opinions  of  eminent  writers  upon  public 
law,  are  collected  in  Wheaton  on  the  Law  of  Nations,  171,  Foelix,  31:3, 
and  Martin  (Verge's  Ed.)  182.  And  the  English  government,  from 
which  we  have  borrowed  our  general  system  of  law  and  jurisprudence, 
has  always  refused  to  deliver  up  poHtical  offenders  who  had  sought 
an  asylum  within  its  dominions.  And  as  the  states  of  this  Union,  al- 
though united  as  one  nation  for  certain  specified  purposes,  are  yet, 
so  far  as  concerns  their  internal  government,  separate  sovereignties, 
independent  of  each  other,  it  was  obviously  deemed  necessary  to  show, 
by  the  terms  used,  that  this  compact  was  not  to  be  regarded  or  con- 
strued as  an  ordinary  treaty  for  extradition  between  nations  altogether 
independent  of  each  other,  but  was  intended  to  embrace  political  of- 
fenses against  the  sovereignty  of  the  state,  as  well  as  all  other  crimes. 
And,  as  treason  was  also  a  "felony"  (4  Bl.  Com.  94),  it  was  neces- 
sary to  insert  those  words,  to  show  in  language  that  could  not  be  mis- 
taken, that  political  offenders  were  included  in  it.    *    *    * 

The  argument  on  behalf  of  the  Governor  of  Ohio,  which  insists  up- 
on exclucHng  from  this  clause  new  offenses  created  by  a  statute  of  the 
state,  and  growing  out  of  its  local  institutions,  and  which  are  not  ad- 
mitted to  be  offenses  in  the  state  where  the  fugitive  is  found,  nor  so 
regarded  by  the  general  usage  of  civilized  nations,  would' render  the 
clause  useless  for  any  practical  purpose.  For  where  can  the  line  of 
division  be  drawn  with  anything  like  certainty?  Who  is  to  mark  it? 
The  Governor  of  the  demanding  state  would  probably  draw  one  line, 
and  the  Governor  of  the  other  state  another.  And,  if  they  differed, 
who  is  to  decide  between  them?  Under  such  a  vague  and  indefinite 
construction,  the  article  would  not  be  a  bond  of  peace  and  union,  but 
a  constant  source  of  controversy  and  irritating  discussion.  It  would 
have  been  far  better  to  omit  it  altogether,  and  to  have  left  it  to  the 
comity  of  the  states,  and  their  own  sense  of  their  respective  interests, 
than  to  have  inserted  it  as  conferring  a  right,  and  yet  defining  that 
right  so  loosely  as  to  make  it  a  never-failing  subject  of  dispute  and 
ili'will.     *     *     * 

Looking,  therefore,  to  the  words  of  the  Constitution— to  the  obvious 
policy  and  necessity  of  this  provision  to  preserve  harmony  between 
states,  and  order  and  law  within  their  respective  borders,  and  to  its 


62  EXTRADITION.  (Ch.  5 

early  adoption  by  the  colonies,  and  then  by  the  confederated  states, 
whose  mutual  interest  it  was  to  give  each  other  aid  and  support  when- 
ever it  was  needed — the  conclusion  is  irresistible  that  this  compact  in- 
grafted in  the  Constitution  included,  and  was  intended  to  include,  ev- 
ery offense  made  punishable  by  the  law  of  the  state  in  which  it  was 
committed,  and  that  it  gives  the  right  to  the  executive  authority  of 
the  state  to  demand  the  fugitive  from  the  executive  authority  of  the 
state  in  which  he  is  found ;  that  the  right  given  to  "demand"  implies 
that  it  is  an  absolute  right;  and  it  follows  that  there  must  be  a  cor- 
relative obligation  to  deliver,  without  any  reference  to  the  character 
of  the  crime  charged,  or  to  the  policy  or  laws  of  the  state  to  which  the 
fugitive  has  fled.    *    *    * 

The  question  which  remains  to  be  examined  is  a  grave  and  import- 
ant one.  When  the  demand  was  made,  the  proofs  required  by  the  act 
of  1793  to  support  it  were  exhibited  to  the  Governor  of  Ohio,  duly 
certified  and  authenticated;  and  the  objection  made  to  the  validity 
of  the  indictment  is  altogether  untenable.  Kentucky  has  an  undoubted 
right  to  regulate  the  forms  of  pleading  and  process  in  her  own  courts, 
in  criminal  as  well  as  civil  cases,  and  is  not  bound  to  conform  to  those 
of  any  other  state.  And  whether  the  charge  against  Lago  is  legally 
and  sufficiently  laid  in  this  indictment  according  to  the  laws  of  Ken- 
tucky is  a  judicial  question  to  be  decided  by  the  courts  of  the  state, 
and  not  by  the  executive  authority  of  the  state  of  Ohio. 

The  demand  being  thus  made,  the  act  of  Congress  declares  that  "it 
shall  be  the  duty  of  the  executive  authority  of  the  state"  to  cause  the 
fugitive  to  be  arrested  and  secured,  and  delivered  to  the  agent  of  the 
demanding  state.  The  words,  "it  shall  be  the  duty,"  in  ordinary  legis- 
lation, imply  the  assertion  of  the  power  to  command  and  to  coerce 
obedience.  But  looking  to  the  subject-matter  of  this  law,  and  the  re- 
lations which  the  United  States  and  the  several  states  bear  to  each 
other,  the  court  is  of  opinion  the  words  "it  shall  be  the  duty"  were  not 
used  as  mandatory  and  compulsory,  but  as  declaratory  of  the  moral 
duty  which  this  compact  created,  when  Congress  had  provided  the 
mode  of  carrying  it  into  execution.  The  act  does  not  provide  any 
means  to  compel  the  execution  of  this  duty,  nor  inflict  any  punish- 
ment for  neglect  or  refusal  on  the  part  of  the  executive  of  the  state ; 
nor  is  there  any  clause  or  provision  in  the  Constitution  which  arms  the 
government  of  the  United  States  with  this  power.  Indeed,  such  a 
power  would  place  every  state  under  the  control  and  dominion  of  the 
general  government,  even  in  the  administration  of  its  internal  con- 
cerns and  reserved  rights.  And  we  think  it  clear  that  the  federal  gov- 
ernment, under  the  Constitution,  has  no  power  to  impose  on  a  state 
officer,  as  such,  any  duty  whatever,  and  compel  him  to  perform  it ;  for. 
if  it  possessed  this  power,  it  might  overload  the  officer  with  duties 
which  would  fill  up  all  his  time,  and  disable  him  from  performing  his 
obligations  to  the  state,  and  might  impose  on  him  duties  of  a  char- 


Ch.  5)  EXTRADITION. 


63 


acter  incompatible  with  the  rank  and  dignity  to  which  he  was  elevated 
by  the  state.     *    *     * 

And  it  would  seem  that  when  the  Constitution  was  framed,  and 
when  this  law  was  passed,  it  was  confidently  believed  that  a  sense  of 
justice  and  of  mutual  interest  would  insure  a  faithful  execution  of  this 
constitutional  provision  by  the  executive  of  every  state,  for  every  state 
had  an  equal  interest  in  the  execution  of  a  compact  absolutely  essen- 
tial to  their  peace  and  well-being  in  their  internal  concerns,  as  well 
as  members  of  the  Union.  Hence  the  use  of  the  words  ordinarily  em- 
ployed when  an  undoubted  obligation  is  required  to  be  performed,  "it 
shall  be  his  duty." 

But  if  the  Governor  of  Ohio  refuses  to  discharge  this  duty,  there  is 
no  power  delegated  to  the  general  government,  either  through  the  ju- 
dicial department  or  any  other  department,  to  use  any  coercive  means 
to  compel  him. 

And  upon  this  ground  the  motion  for  the  mandamus  must  be  over- 
ruled.^ 


In  re  MOHR. 

(Supreme  Court  of  Alabama,  1883.    73  Ala.  503.  49  Am.  Rep.  63.) 

SoMERViLLE,  J.^  The  purpose  of  the  present  application  is  to  va- 
cate the  action  of  the  probate  judge,  discharging  one  Alexander  Mohr 
from  alleged  illegal  custody,  on  his  petition  for  the  writ  of  habeas 
corpus.  The  return  to  the  writ  showed  that  the  petitioner  was  held 
in  the  custody  of  the  relator,  Frederick  Centner,  as  agent  of  the  state 
of  Pennsylvania,  under  a  warrant  of  arrest  issued  by  authority  of  the 
Governor  of  Alabama,  pursuant  to  a  requisition  from  the  Governor 
of  the  former  state,  demanding  his  extradition  as  a  fugitive  from  jus- 
tice. The  crime  charged  is  that  of  obtaining  goods  by  false  pretenses. 
The  probate  judge  permitted  evidence  to  be  introduced,  showing  that 
the  prisoner  was  not  in  the  state  of  Pennsylvania  at  the  time  of  the 
commission  of  the  alleged  offense,  and  had  never  been  there  since; 
that  the  goods  were  obtained  by  purchase  from  an  agent  of  the  prose- 
cutor in  the  state  of  New  York,  to  whom  the  false  representations,  if 
any,  were  made ;  and  that  the  petitioner  had  never  fled  from  the  state 
of  Pennsylvania,  and  was  not  a  fugitive  from  justice.  It  is  claimed 
that  the  state  courts  have  no  jurisdiction  of  the  case,  and,  if  so,  that 
the  probate  judge  had  no  jurisdiction  to  go  behind  the  warrant  of  the 
executive,  to  investigate  the  question  as  to  whether  or  not  the  prisoner 

2  "The  power  to  surrender  fusitives,  who,  bavins  committed  offenses  in  a 
foreign  country,  have  fled  to  this  for  shelter,  belouss.  under  the  Constitution 
of  the  United  States,  exchisively  to  the  fwleral  sov(M-nuient."  Taney,  C.  J., 
in  Holmes  v.  Jennison,  39  U.  S.  579,  10  L.  Ed.  579  (1840). 

8  Part  of  this  case  is  omitted. 


64  EXTRADITION.  (Ch.  5 

was  in  fact  a  fugitive  from  justice,  and  that  the  proceedings  before 
him  were  coram  non  judice  and  void.    *    *    * 

Is  it  permissible  to  show  that  the  case  is  not  one  coming  within  the 
provisions  of  the  Constitution  and  act  of  Congress,  because  the  party 
charged  is  not  a  fugitive  from  justice,  having  committed  the  alleged 
offense,  if  at  all,  only  constructively  while  outside  of  the  territorial 
jurisdiction  of  the  demanding  state?  Or  are  the  papers  in  the  case,  in 
connection  with  the  warrant  of  arrest  issued  by  the  Governor  of  this 
state,  to  be  regarded  as  importing  absolute  verity  in  this  particular, 
so  as  to  be  incapable  of  contradiction  ? 

The  statute  provides  that,  if  the  return  to  the  writ  of  habeas  corpus 
shows  that  the  petitioner  is  "in  custody  for  any  public  offense,  com- 
mitted in  any  other  state  or  territory,  for  which,  by  the  Constitution 
and  laws  of  the  United  States,  he  should  be  delivered  up  to  the  au- 
thority of  such  state  or  territory,"  he  should  be  remanded.  Code  1876, 
§  4957.  This  is,  perhaps,  merely  declaratory  of  what  the  law  would 
require  in  the  absence  of  the  statute.  The  power  claimed  by  the  pris- 
oner is  the  right  to  show  that  his  case  is  one  outside  of  the  class  in- 
tended to  be  covered  by  the  Constitution  and  laws  of  the  United  States. 

The  authorities  are  not  in  harmony  as  to  what  questions  can  be  re- 
viewed b}^  habeas  corpus  in  cases  of  extradition.  It  seems  very  cer- 
tain that  there  is  no  power  to  go  behind  the  indictment  or  affidavit, 
with  the  view  of  investigating  the  question  of  the  prisoner's  guilt  or 
innocence.  In  re  Clark,  9  Wend.  (N.  Y.)  212.  He  cannot  be  put  upon 
trial  for  tlie  crime  with  which  he  is  charged,  nor  can  any  inquiry  be 
made  into  either  the  merits  of  his  defense,  or  mere  formal  defects  in 
the  charge.  These  inquiries  are  reserved  for  the  courts  of  the  demand- 
ing state,  having  jurisdiction  of  the  offense.  People  v.  Brady,  56  N. 
Y.  182;  Robinson  v.  Flanders,  29  Ind.  10.  Congress  has  seen  fit  to 
adopt  special  legislation  regulating  this  phase  of  the  evidence  in  the 
case.  The  act  of  1793  makes  conclusive  the  production  of  a  copy  of 
the  indictment  found,  or  an  affidavit  made  before  a  magistrate  of  the 
demanding  state,  "charging  the  person  demanded  with  having  com- 
mitted treason,  felony,  or  other  crime,"  certified  as  authentic  by  the 
Governor  of  such  state.  Rev.  St.  U.  S.  §  5278  (U.  S.  Comp.  St.  1901, 
p.  3597).  These  papers,  if  in  due  form,  are  made  conclusive  evidence 
of  the  guilt  of  the  accused,  when  assailed  on  habeas  corpus.  It  may 
be  considered,  therefore,  as  the  settled  doctrine  of  the  courts,  that  a 
prima  facie  case  is  made,  when  the  return  to  the  writ  of  habeas  corpus 
shows:  (1)  A  demand  or  requisition  for  the  prisoner,  made  by  the 
executive  of  another  state,  from  which  he  is  alleged  to  have  fled;  (2) 
a  copy  of  the  indictment  found,  or  affidavit  made  before  a  magistrate, 
charging  the  alleged  fugitive  with  the  commission  of  the  crime,  cer- 
tified as  authentic  by  the  executive  of  the  state  making  the  demand ; 
(3)  the  warrant  of  the  Governor  authorizing  the  arrest.  Where  these 
facts  are  made  to  appear  by  papers  regular  on  their  face,  there  is  a 
weight  of  authority  holding  that  the  prisoner  is  prima  facie  under  legal 


Ch.  5)  EXTRADITION.  65 

restraint.  Spear's  Law  of  Extrad.  208-303 ;  Matter  of  Clark,  9  Wend. 
(N.  Y.)  212;  State  v.  Schlemn,  4  liar.  (Del.)  577;  In  re  Hooper,  52 
Wis.  699,  58  N.  W.  741 ;  People  v.  Brady,  56  N.  Y.  182 ;  Bump's 
Notes  of  Const.  Dec.  295-297;   Johnston  v.  Riley,  13  Ga.  97. 

Many  of  the  cases  hold  that  the  warrant  of  the  Governor,  reciting 
these  jurisdictional  facts,  is  itself  prima  facie  sufficient  to  show  that  all 
the  necessary  prerequisites  have  been  complied  with  prior  to  its  issue 
by  him,  although  as  to  this  proposition  there  is  a  conflict  of  opinion. 
Davis'  Case,  122  Mass.  32-1 ;  Kingsbury's  Case,  106  Mass.  223 ;  Rob- 
inson V.  Flanders,  29  Ind.  10 ;  Hartman  v.  Aveline,  63  Ind.  344,  30 
Am.  Rep.  217.  Which  of  these  is  the  correct  view  we  need  not  de- 
cide, as  all  the  proper  papers  in  due  form  are  set  out  in  the  return 
made  to  the  writ  by  the  respondent,  Centner,  who  is  the  relator  in 
this  proceeding. 

It  is  obvious  that  the  extradition  clause  of  the  federal  Constitution 
has  reference  only  to  a  specified  class,  and  not  to  all  criminals.  Its 
language  is :  A  person  charged  with  any  crime  "who  shall  flee  from 
justice  and  be  found  in  another  state."  Article  4,  §  2.  The  act  of 
Congress  is  more  emphatic,  if  possible,  in  describing  such  person  as 
an  actual  fugitive,  characterizing  him  as  one  who  "has  fled,"  and  the 
state  in  which  he  is  found  as  the  state  to  which  he  "has  fled."  Rev. 
St.  U.  S.  §  5278  (U.  S.  Comp.  St.  1901,  p.  3597).  It  may  be  con- 
sidered clear,  therefore,  without  any  conflict  of  authority,  that  the 
Constitution  and  laws  of  Congress  do  not  provide  for  the  extradition 
of  any  persons  except  those  who  may  have  fled  from  or  left  the  de- 
manding state  as  fugitives  from  the  justice  of  that  state.  Whart.  Cr. 
PI.  &  Pr.  (8th  Ed.)  31,  and  cases  cited;  Spear's  Law  of  Extrad.  273, 
310-316.  "The  offense,"  says  Mr.  Cooley,  "must  have  been  actually 
committed  within  the  state  making  the  demand,  and  the  accused  must 
have  fled  therefrom."     Cooley's  Const.  Lim.  (5th  Ed.)   16,  note  1. 

There  is  a  difference  of  opinion  as  to  what  must  be  the  exact  nature 
of  this  flight  on  the  part  of  the  criminal,  but  the  better  view,  perhaps, 
is  that  any  person  is  a  fugitive,  within  the  purview  of  the  Constitu- 
tion, "who  goes  into  a  state,  commits  a  crime,  and  then  returns  home." 
Kingsbury's  Case,  106  Mass.  223 ;  Hurd  on  Hab.  Corp.  606.  In  the 
Case  of  Voorhees,  32  N.  J.  Law,  141,  he  was  characterized  as  one 
"who  commits  a  crime  in  a  state,  and  withdraws  himself  from  such 
jurisdiction."  This  point,  however,  we  need  not  decide,  as  it  is  shown 
that  the  prisoner,  Mohr,  has  never  been  into  the  jurisdiction  of  the 
demanding  state  since  the  commission  of  the  alleged  crime.  He  can- 
not, therefore,  be  said  to  be  a  fugitive  from  the  justice  of  that  state. 

It  is  clear  to  our  mind  that  crimes,  which  are  not  actually,  but  are 
only  constructively,  committed  within  the  jurisdiction  of  the  demand- 
ing state,  do  not  fall  within  the  class  of  cases  intended  to  be  embraced 
by  the  Constitution  or  act  of  Congress.  Such  at  least  is  the  rule,  un- 
less the  criminal  afterwards  goes  into  such  state  and  departs  from  it, 
Mik.Cb.Pr. — 5 


66  EXTRADITION.  (Ch.  5 

thus  subjecting  himself  to  the  sovereignty  of  its  jurisdiction.  The  rea- 
son is,  not  that  the  jurisdiction  to  try  the  crime  is  lacking,  but  that 
no  one  can  in  any  sense  be  alleged  to  have  "fled"  from  a  state,  into 
the  domain  of  whose  territorial  jurisdiction  he  has  never  been  cor- 
porally present  since  the  commission  of  the  crime.  And  only  this 
class  of  persons  are  embraced  within  either  the  letter  or  spirit  of  the 
Constitution,  the  purpose  of  which  was  to  make  the  extradition  of 
fugitive  criminals  a  matter  of  duty,  instead  of  mere  comity  between 
the  states.  The  language  of  the  Constitution  and  the  law  of  Congress 
are  entirely  free  from  ambiguity  on  this  point,  being  too  obvious  to 
admit  of  judicial  construction;  and  the  authorities  are  uniform  in 
adoption  of  this  view  as  to  its  manifest  meaning.  Whart.  Cr.  PI.  & 
Pr.  (Sth  Ed.)  §  31 ;  Spear's  Law  of  Extrad.  309-316 ;  Voorhees'  Case, 
33  N.  J.  Law,  147 ;  Kingsbury's  Case,  106  Mass.  223 ;  Ex  parte  Smith, 
3  McLean,  121,  Fed.  Cas.  No.  12,968 ;  Wilcox  v.  Nolze,  34  Ohio  St. 
520. 

We  are  of  opinion  that  it  was  never  intended  by  Congress,  in  their 
enactment  of  the  law  of  1793,  that  the  finding  of  the  Governor  of  a 
state  that  one  is  a  fugitive  from  justice  should  be  conclusive  evidence 
of  that  fact,  incapable  of  contradiction  by  facts  showing  the  contrary. 
It  is  an  important  feature  of  the  law,  throwing  some  light  upon  its 
proper  construction,  that  while  it  expressly  prescribes  the  mode  by 
which  evidence  of  the  crime  charged  shall  be  authenticated,  it  nowhere 
prescribes  how  the  fact  that  he  is  a  fugitive  from  justice  shall  be  es- 
tablished. There  seems  to  us  to  have  been  a  good  and  sufficient  rea- 
son for  this  distinction.  Nothing  was  more  proper  than  the  policy 
of  precluding  the  fugitive  from  disputing  the  certified  records  from 
the  courts  of  a  sister  state,  in  view  of  the  constitutional  requirement 
that  "full  faith  and  credit"  shall  be  given  in  each  state  to  "the  records 
and  judicial  proceedings  of  every  other  state."    Const.  U.  S.  art.  4,  §  1. 

But  no  such  reason  applies  to  the  implication  of  the  defendant's  be- 
ing a  fugitive,  because  he  is  found  in  another  state  than  the  one  in 
whose  courts  the  charge  is  pending.  It  may  be  asserted  that  it  was 
within  the  power  of  the  Governor  to  investigate  this  fact  before  he  is- 
sued the  warrant,  so  as  to  satisfy  himself  of  its  truth.  Perhaps  this 
is  the  correct  view ;  but  this  duty  must,  in  its  very  nature,  be  discre- 
tionary. In  practice,  the  fact  of  the  criminal's  flight  is  usually  shown 
by  affidavit ;  but  this  cannot  be  regarded  as  conclusive  upon  any  prin- 
ciple known  to  us,  in  the  absence  of  statutory  regulation  so  declar- 
ing the  law.  The  better  view  seems  to  us  to  be  that  one  of  the  pur- 
poses of  pretermitting  express  congressional  legislation  on  this  point 
was  to  refer  the  matter  to  executive  determination,  subject  to  review 
by  habeas  corpus  in  the  courts  in  all  proper  cases.  The  papers  being 
regular,  the  Governor  has  a  right  to  suppose  that  a  prima  facie  case 
exists  for  a  warrant,  and  the  safer  practice  would  seem  to  be  that 
the  accused  should  be  remitted  to  the  courts  to  establish  matters  of 
defense  aliunde  the  record.     Especially  is  this  true  in  doubtful  cases. 


EXTRADITION.  67 


Ch.5) 

As  we  have  said,  the  grounds  of  imprisonment  in  this  class  of  cases 
are  constantly  reviewed  by  habeas  corpus,  in  the  state  courts.  \\'hart. 
Cr.  PI.  &  Pr.  §  35.  It  is  just  as  material  to  show  that  the  prisoner 
does  not  come  within  the  law,  on  the  ground  that  he  has  never  fled 
from  the  demanding  state,  as  on  the  ground  that  he  is  not  the  identical 
person  intended  to  be  indicted,  or  that  there  is  no  authenticated  copy 
of  the  indictment,  or  other  charge  against  him.  All  of  these  facts 
must  concur,  before  the  law  authorizes  the  requisition  to  be  made, 
or  the  warrant  of  arrest  to  issue.  They  are  jurisdictional  facts,  in  the 
absence  of  which  the  prisoner  is  excluded  from  the  operation  and  in- 
fluence of  the  law,  and  no  extradition  can  be  constitutionally  author- 
ized by  congressional  legislation.  Whart.  Cr.  PI.  &  Pr.  (8th  Ed.)  §§ 
31,  34,  35. 

This  view  is  supported  by  the  best-considered  cases,  and  parol  evi- 
dence has  been  often  admitted  by  the  courts,  in  proceedings  by  habeas 
corpus,  for  the  purpose  of  showing  that  the  warrant  of  the  Governor 
was  improvidently  issued  under  the  mistaken  belief  that  the  prisoner 
was  a  fugitive.     *    *    * 

We  are  of  opinion  that  the  probate  judge  did  not  err  m  dischargmg 
the  petitioner,  and  that  it  was  competent  for  him  to  hear  oral  evi- 
dence, in  order  to  establish  the  fact  that  the  petitioner  was  not  a  fugi- 
tive from  justice. 

Any  other  conclusion  than  this  would  establish  a  doctrine  very  dan- 
gerous to  the  liberty  of  the  citizen.  It  would  greatly  impair  the  ef- 
ficacy of  the  proceeding  of  habeas  corpus,  which  has  often  been  char- 
acterized as  the  great  writ  of  liberty,  and  may  be  regarded,  not  less 
than  the  right  of  trial  by  jury,  as  one  of  the  chief  corner  stones  in  the 
structure  of  our  judiciary  system.  It  might  justly  be  considered  as 
alarming  to  announce  that  a  writ,  which  has  so  frequently  been  used 
for  centuries  past  to  prevent  the  encroachment  of  kings  upon  popular 
liberty,  is  inadequate  for  the  just  purpose  for  which  it  has  been  m- 
voked  in  this  case. 

The  application  made  by  the  relator  must  be  denied.* 

Brickei.l,  C.  J.,  dissents. 

4  See,  also,  Illinois  v.  Pease,  207  U.  S.  100,  2S  Sup.  Ct.  58.  .52  L.  Ed.  121 

(1907).  '  .  ..         ^      •      1 

"Whether  an  extraditable  crime  has  heen  committed  is  a  question  ot  mixed 
law  and  fact  but  chiefly  of  fact,  and  the  jnd.gment  of  the  magistrate  ren- 
dered in  ^'ood  faith  on  le^al  evidence  that  the  accused  is  guilty  of  the  act 
charged  and  that  it  constitutes  an  extraditable  crime,  cannot  be  reviewed 
on  the  weight  of  evidence,  and  is  final  for  the  purpose  of  the  preliminary 
examination  unless  palpably  erroneous  in  law."  Fuller,  C.  J.,  in  Ornelas  v. 
Ruiz,  101  U.  S.  509,  IG  Sup.  Ct.  091,  40  L.  Ed.  7S4  (1S9G). 

"It  is  not  necessary  that  the  party  charged  should  have  left  the  state  in 
which  the  crime  is  alleged  to  have  been  committed,  after  an  indictment  found, 
or  for  the  purpose  of  avoiding  a  prosecution  anticipated  or  begun,  but  simply 
that,  having  within  a  state  committed  that  which  by  its  laws  constitutes  a 
crime,  when  he  is  sought  to  be  subjected  to  its  criminal  process  to  answer  for 
his  offense,  he  has  left  its  jurisdiction,  and  is  found  within  the  territory  of 
another."  Matthews,  J.,  in  Roberts  v.  Reilly,  110  U.  S.  97,  6  Sup.  Ct.  300, 
29  L.   Ed.  544  (1885). 


68  EXTRADITION.  (Ch.  5 

In  re  HOPE. 
(New  York  Executive  Chamber,  1889.     10  N.  T.  Supp.  28.) 

James  Hope  was  brought  from  California  to  New  York  under  a 
requisition  from  the  Governor  of  New  York,  was  convicted  of  the 
crime  charged,  and  sentenced  to  a  term  of  imprisonment.  After  his 
term  had  expired,  and  before  an  opportunity  had  been  given  him  to 
return  to  raHioi-nia,  he  vv?is  arrested  ^  a  requisition  from  the  Gov- 
ernor of  Delaware  toJheGovernor  of  New  York,  and  he  now  applies 
to  the  rTovpunnr  of  TVew'v'ork  to  vacate  the  warrant  of  arrest. 

HiivL,  Governor.  The~TjOv€mor  of  Delaware  has  issued  a  requisi- 
tion upon  me  for  the  return  to  that  state  of  the  prisoner,  James  Hope. 
The  papers  accompanying  the  requisition  consist  of  a  copy  of  an  in- 
dictment against  Hope  for  burglary,  and  a  record  of  conviction  there- 
under in  Delaware,  showing  his  sentence  for  ten  years,  and  proof  by 
affidavit  that  he  escaped  from  jail  with  over  nine  years  of  such  sen- 
tence unserved.  His  return  to  that  state  is  demanded  for  the  purpose 
of  compelling  him  to  serve  out  the  remainder  of  his  unexpired  sen- 
tence. The  requisition  was  honored  by  me  pro  forma,  and  the  pris- 
oner arrested,  and  now,  after  a  full  hearing  has  been  had,  the  ques- 
tion arises  whether  the  warrant  should  not  be  revoked.  Mr.  Charles 
W.  Brooke,  the  prisoner's  counsel,  insists  that  the  requisition  should 
be  revoked,  upon  the  ground  that  there  is  no  authority  under  the  Con- 
stitution and  the  laws  for  the  extradition  of  an  escaped  convicted  pris- 
oner. He  argues  that  a  person  can  only  be  returned  to  another  state 
to  answer  a  charge  made  against  him  upon  which  no  conviction  has 
yet  been  had. 

The  broad  ground  is  taken  that  there  is  no  legal  remedy  whatever 
provided  to  secure  his  return  where  a  convicted  felon  escapes  from  one 
state  into  another.  H  this  be  true,  it  is  new  doctrine,  indeed,  and  dis- 
closes a  lamentable  defect  in  our  criminal  laws.  The  constitutional 
provision  relating  to  interstate  extradition  (article  4,  §  2,  subd.  2)  de- 
clares that  "a  person  charged  in  any  state  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice  and  be  found  in  another  state, 
shall  *  *  *  be  delivered  up,  to  be  removed  to  the  state  having  ju- 
risdiction of  the  crime."  It  is  seriously  urged  that  a  person  cannot 
be  deemed  to  be  "charged"  with  a  crime  when  he  has  already  been 
convicted  for  such  crime.  It  seems  to  be  claimed  that  the  "charge" 
no  longer  exists  because  it  is  deemed  merged  in  the  conviction.  It  is 
also  urged  that  the  law-writers  have  laid  it  down  in  the  books  that  the 
declared  object  of  an  extradition  is  the  removal  of  the  person  charged 
with  the  crime  for  the  purpose  of  his  being  subsequently  tried  upon 
the  charge  presented  against  him,  and  that  extradition  cannot  be  in- 
voked for  any  other  purpose.  This  is  ordinarily  so,  and  correctly 
states  the  general  rule.  These  expressions  to  be  found  in  the  books, 
however,  have  reference,  not  to  exceptional  instances,  but  to  the  usual 


Ch.  5)  EXTRADITION.  69 

class  of  cases  where  offenders  have  fled  from  one  state  to  another 
prior  to  apprehension  or  conviction.  Such  flights  are  common,  while 
escapes  after  conviction  are  rare. 

It  is  clear  that  in  enunciating  a  general  proposition  there  was  no  in- 
tention of  excluding  or  exempting  convicted  escaped  persons  from  lia- 
bility to  extradition.  No  narrow  or  strained  construction  should  be 
placed  upon  the  word  "charged,"  as  used  in  the  constitution  and  in  the 
federal  statute.  It  is  broad  enough  to  include  all  classes  of  persons 
duly  accused  of  crime.  A  person  can  be  said  to  be  "charged"  with 
crime  as  well  after  his  conviction  as  before.  The  conviction  simply 
establishes  the  charge  conclusively.  An  unsatisfied  judgment  of  con- 
viction still  constitutes  a  "charge"  within  the  true  intent  and  meaning 
of  the  constitution.  An  indictment  or  affidavit  merely  presents  the 
charge,  while  a  conviction  proves  it.  To  warrant  extradition  the  stat- 
ute requires  an  indictment  or  affidavit  charging  a  crime,  but  if,  in  ad- 
dition thereto,  there  is  also  presented  a  record  of  conviction,  the  case 
is  not  weakened  but  rather  strengthened.  The  public  purpose  to  be 
effected  by  extradition  must  be  taken  into  consideration  in  determining 
the  question.  Its  object  is  to  prevent  the  successful  escape  of  all  per- 
sons accused  of  crime,  whether  convicted  or  unconvicted,  and  to  se- 
cure their  return  to  the  state  from  whence  they  fled,  for  the  purpose 
of  punishment.  It  is  invoked  to  aid  the  administration  of  criminal 
justice,  and  to  more  certainly  insure  the  punishment  of  the  guilty. 

The  construction  contended  for  by  the  prisoner's  counsel  would  de- 
feat the  ends  of  justice  in  many  instances,  and  it  is  conceded  that  there 
is  no  express  decision  favoring  it.  It  has  been  usual  to  grant  extra- 
dition in  similar  cases.  The  Case  of  Carter,  decided  by  me  on  July 
10,  1885,  but  not  reported,  was  just  such  a  case,  although  this  precise 
point  was  not  then  raised.  In  Dolan's  Case,  101  Mass.  219,  and  in 
Hollon  V.  Hopkins,  21  Kan.  638,  the  prisoners  were  returned  by  ex- 
tradition to  other  states  to  serve  out  unexpired  sentences,  and  no  such 
question  seems  to  have  been  raised  as  to  the  legality  of  the  proceed- 
ings. This  first  point  raised  by  the  prisoner's  counsel  seems  altogether 
too  technical,  and  I  am  constrained  to  overrule  it. 

The  next  question  presented  is  not  without  merit.  It  was  shown 
upon  the  hearing  before  me  that  Hope  did  not  voluntarily  come  into 
this  state,  but  was  brought  here  in  1887  from  the  state  of  California, 
on  a  requisition  from  the  Governor  of  this  state,  to  answer  a  charge 
of  crime  made  against  him,  and  that  since  he  has  been  incarcerated 
in  the  Auburn  prison ;  and  it  appears  that  upon  his  term  of  imprison- 
ment expiring,  he  has  been  arrested  under  or  by  virtue  of  the  requisi- 
tion in  question  from  the  Governor  of  Delaware.  It  is  conceded  that 
such  arrest  was  made  before  a  reasonable  time  and  opportunity  had 
been  given  him,  after  his  release  from  Auburn,  to  return  to  California, 
where  he  claims  he  desired  and  intended  to  go.  This  state  of  facfs 
presents  an  interesting  question  upon  which  there  have  been  conflict- 
ing decisions  for  many  years.     Upon  principle,  I  think,  it  is  clear  that 


70  EXTRADITION.  (Ch.  5 

where  a  prisoner  is  brought  into  this  state  from  another  state  or 
country  upon  extradition  proceedings,  he  cannot  properly  be  tried 
upon  any  other  charge  than  that  mentioned  in  the  requisition,  and  that 
upon  his  acquittal,  or  if  convicted,  then  upon  the  expiration  of  his  im- 
prisonment, he  is  entitled  to  a  reasonable  time  in  which  to  return  to 
the  other  state  or  country  from  which  he  was  thus  forcibly  taken  be- 
fore he  can  be  again  arrested. 

The  recent  decision  of  the  Supreme  Court  of  the  United  States  (U. 
S.  V.  Rauscher,  119  U.  S.  407-429,  7  Sup.  Ct.  234,  30  L.  Ed.  425) 
must  be  deemed  to  settle  this  question  in  accordance  with  the  doctrine 
above  stated.  Although,  in  that  case,  the  prisoner  was  brought  from 
a  foreign  country,  the  decision  is  applicable  to  this  case,  because  in 
principle  there  is  no  practical  difference  between  the  case  of  a  fugitive 
brought  from  a  neighboring  state  under  the  Constitution  and  laws  of 
the  United  States  and  one  brought  from  a  foreign  country  under  the 
provisions  of  its  treaties.  In  the  Rauscher  Case,  above  cited,  all  the 
conflicting  authorities  in  both  the  federal  and  state  courts  are  reviewed 
and  considered  in  the  able  opinion  of  the  court  by  Mr.  Justice  Miller, 
and  the  principle  here  contended  for  is  expressly  approved.  This  be- 
ing the  decision  of  the  highest  court  in  the  land  upon  a  question  which 
must  be  regarded  as  essentially  federal  in  its  character,  it  should  be 
respected  and  followed,  not  only  by  all  federal  courts,  but  by  all  state 
courts  as  well.  The  cases  which  have  held  heretofore,  either  express- 
ly or  impliedly,  a  contrary  doctrine — and  there  are  many  ( Adrian ce 
V.  Lagrave,  59  N.  Y.  110^  17  Am.  Rep.  317;  U.  S.  v.  Lawrence,  13 
Blatchf.  295,  Fed.  Cas.  No.  15,572 ;  Hackney  v.  Welsh,  107  Ind.  253, 
8  N.  E.  141,  57  Am.  Rep.  101 ;  Williams  v.  Bacon,  10  Wend.  036)— 
should  no  longer  be  regarded  as  good  authority  upon  this  particular 
question.  This  is  the  view  taken  in  the  recent  cases  of  State  v.  Hall, 
40  Kan.  338,  19  Pac.  93  8,  10  Am.  St.  Rep.  200,  and  In  re  Reinitz  (C. 
C.)  39  Fed.  204,  4  L.  R.  A.  236,  23  Abb.  N.  C.  69,  in  each  of  which 
the  Rauscher  Case  is  followed. 

It  is  believed  that  the  decision  in  the  Rauscher  Case  will  be  cheer- 
fully acquiesced  in  by  the  courts  and  officials  of  all  the  states,  not 
solely  because  it  is  the  interpretation  of  the  law  from  our  highest 
court,  but  also  because  it  will  be  found  upon  reflection  to  be  entirely 
correct  in  principle.  It  is  in  harmony  with  the  views  expressed  by 
the  best  text-writers  upon  extradition.  It  is  in  accordance  with  com- 
mon sense.  It  will  render  extradition  proceedings  entirely  consistent, 
and  prevent  unseemly  conflicts  of  jurisdiction.  The  true  theory  which 
now  seems  to  be  firmly  established,  is  that  a  state  should  not  be  al- 
lowed to  obtain  jurisdiction  of  a  fugitive  from  justice,  and  then  to  take 
advantage  of  that  jurisdiction  thus  obtained,  and  use  it  for  another 
and  different  purpose ;  that  a  fugitive  surrendered  on  one  charge  is 
exempt  from  prosecution  on  any  other;  that  he  is  within  the  state 
by  compulsion  of  law  upon  a  single  accusation,  and  has  a  right  to 
have  that  disposed  of,  and  then  to  depart  in  peace ;    and  that  if,  after 


Gh,  5)  EXTRADITION,  71 

his  release,  he  remains  in  the  state  beyond  a  reasonable  time,  he  then 
can  be  arrested,  but  not  otherwise. 

It  follows  from  what  has  been  here  stated  that  the  arrest  in  this 
case  was  premature,  and  that  the  warrant  heretofore  issued  should 
be  revoked.'^ 

B  Before  the  fugitive  can  be  lawfully  delivered  up,  it  must  appear  in  the 
proceedings  for  extradition  that  he  has  been  charged  with  the  commission  of 
the  crime  either  by  indictment  or  affidavit.  Rev.  St.  U.  S.  §  5278  (U.  S.  Comp. 
St.  1901,  p.  3597).  A  charge  by  information  is  not  sufficient.  Ex  parte  Hart, 
(S  Fed.  249,  11  C.  C.  A.  16o,  28  L.  R.  A.  801  (1894).  Contra:  In  re  Hooper, 
52  Wis.  699,  58  N.  W.  741  (1881). 


72 


PROCEEDINGS   BEFORE    MAGISTRATE. 


(Ch.6 


CHAPTER  VI 
PROCEEDINGS  BEFORE  MAGISTRATE 


WINDHAM  V.  CLERE. 

(Court  of  Queen's  Bench,  15S8.     Cro.  Eliz.  130.) 

Action  upon  the  case.  And  declares,  that  the  defendant  was  a  jus- 
tice of  peace  in  the  county  of  N.  And  whereas  the  plaintiff  was  a 
loyal  subject,  etc.  the  defendant  maliciously  intending  to  deprive  him 
of  his  good  name  and  fame,  did  direct  his  warrant,  and  shews  it  in 
certainty,  etc.  to  divers  constables  to  attach  him;  alleging  he  was  ac- 
cused of  the  stealing  of  the  horse  of  A.  B.  by  reason  whereof  he  was 
arrested,  till  he  put  in  bond  to  appear,  etc.  ubi  revera  he  was  never 
accused,  nor  did  steal  the  horse,  and  the  defendant  did  know  him  to 
be  guiltless;  by  reason  whereof  he  was  greatly  discredited.  Upon 
non  culp'  pleaded,  it  was  found  for  the  plaintiff.  And  it  was  held  by 
Cle;nch  and  Gawdy,  the  action  was  maintainable.  If  a  man  be  ac- 
cused to  a  justice  of  peace  for  an  offense,  for  which  he  causes  him  to 
be  arrested  by  his  warrant,  although  the  accusation  be  false,  yet  he 

is  excusable  ;    biij-   if  th£L^-n-ty  he  nr^ar   ^rr\^^p^]^  hut  the  jngtirp  of  his 

malice  aiid-£mai-4^€ad  cause 4wtt-4o  be  airested,  it  is  otherwise.     And 
they  commanded  judgment  to  be  given  for  the  plaintiff.    14  Hen.  VIII. 


BLODGETT  v.  RACE. 

(Supreme  Court  of  New  York,  1879.     18  Hun,  132.) 

BocKES,  J.^  A  complaint  in_jAautino[,_jcharg^  criminal  offense, 
although..,on_jnformatjon__aTij_b£lief  only  as  to  the  person  suspected 
of  having  coi^mitteclJTtjs_si^^  to  authorize  an  investigation  be- 
fore a  magistrate  by  the  examinatiorT^of  witnesses.  The  magistrate 
on  such  complaint  maylssue^subpoenas  for  witnesses,  and  has  jurisdic- 
tion of  the  subject-matter  of  the  offence  charged  to  have  been  com- 
mitted, and  may  compel  the  attendance  of  witnesses  by  attachment  in 
case  of  disobedience  of  the  subpoena.  People  v.  Hicks,  15  Barb.  153. 
But  before  a-a^atxailLcaaJawfully  issue  for  the  j^rrp^^t  nifhe  offender 
the  maorigtratPjTiviQi  ji^y^  somp  Pviflencp  jQJ  hjs  guilt.  Facts  and  cir- 
cumstances, stated  on  infnfvmatinn  an4^belief_only,  without  giving  any 
sufificient  grounds  on  which  to_base  the  belief,  are  insufficient  to  con- 
fer jurisdictionas^to  the  person.    The  magistrate  must  have  evidence 

1  The  statement  of  facts  is  omitted. 


Ch.  6)  PROCEEDINGS   BEFORE   MAGISTRATE.  73 

of  probable  cause,  both  as  to  the  commission  of  the  offense  and  the 
guilt  of  the  offender,  before  he  can  have  jurisdiction  to  cause  the  ar- 
rest. Comfort  V.  Fulton,  39  Barb.  56 ;  Vredenburgh  v.  Hendricks,  17 
Barb.  179 ;  Wilson  v.  Robinson,  6  How.  Prac.  110;  Pratt  v.  Bogardus, 
49  Barb.  89 ;  People  v.  Hicks,  15  Barb.  153 ;  Wells  v.  Sisson,  14  Hun, 
267 ;  Carl  v.  Ayers,  53  N.  Y.  14.  It  is  laid  down  in  Waterman's  Notes 
to  Archbold's  Criminal  Practice  and  Pleadings  (vol.  1,  20,  marginal 
page  31)  that  a  warrant  cannot  be  issued  against  one,  if  his  guilt  ap- 
pears only  from  hearsay  and  mere  rumor,  but  that  a  case  of  probable 
guilt,  on  the  part  of  the  accused,  must  be  made  out.  H  facts  and  cir- 
cumstances be  stated,  sufficient  to  call  for  judicial  determination,  the 
magistrate  will  be  protected  in  his  action,  and  this,  although  he  might 
err  in  judgment.  In  such  case  he  is  to  be  fully  protected  and  the  er- 
ror can  only  be  made  available  on  writ  of  error  or  appeal  in  the  ac- 
tion, or  proceeding  in  which  the  error  occurred. 

As  to  the  case  in  hand,  it  seems  that  the  warrant  was  issued  on  less 
proof  even  than  information  or  belief  as  regards  the  plaintiff.  It  was 
issued  on  an  alIpffation^o;iIy-ef-%Hacicion  and  belief"  as  to  the  plain- 
tiff's guilt  No  fact  or  circumstance  whatever  was  stated  to  support 
the  siispiciotT-,  even  much  less  to  support  a  conclusion  of  probable  cause 
against  him.  The  warrant  was  without  jurisdiction,  hence  afforded 
the  defendant  no  prnfprtfT^fr-^rg^rn^t  thp-~H-T?rr^-nf  an  illegal  arrest. 
It  is  not  necessary  here  to  hold  that  the  defendant  had  no  ground  for 
committing  the  plaintiff  after  the  open  public  examination  was  had. 
It  is  quite  possible,  and  I  think  it  must  be  assumed,  that  there  was 
sufficient  evidence  given  before  him  to  uphold  his  conclusion  to  com- 
mit. But  we  do  not  pass  upon  that  question  here.  The  original  ar- 
rest, directed  by  the  defendant,  was  unauthorized,  and  the  nonsuit 
herein  was  therefore  improperly  granted.  This  conclusion  renders  it 
unnecessary  to  examine  other  questions  raised  in  the  case.  Perhaps 
it  should  be  further  remarked  that  the  case,  as  presented  on  this  ap- 
peal, does  not  appear  to  be  one  of  serious  enormity.  The  good  faith 
of  the  defendant,  in  issuing  the  warrant,  is  not  denied.  The  plaintiff' 
was  in  no  way  seriously  oppressed ;  on  the  contrary,  was  allowed  great 
liberty  after  his  arrest,  and  during  the  examination,  and  finally  submit- 
ted to  be  committed,  rather  than  give  bail,  which  it  seems  was  easily 
to  be  obtained.  W^hether  or  not  the  plaintiff  may  recover  more  than 
nominal  damages  is  for  a  jury  to  determine.  The  order  appealed 
from  denying  a  new  trial  must  be  reversed. 

Learned,  P.  J.,  and  Boardman,  J.,  concurred. 


74  PROCEEDINGS   BEFORE   MAGISTRATE.  (Ch.  6 

SCAVAGE  V.  TATEHAM. 
(Court  of  Common  Pleas,  1601.    Cro.  Eliz.  829.) 

False  imprisonment  in  London  from  the  10th  September  unto  the 
29th  September.  The  defendant^vistifies,  for  that  he  was  ma3-or  and 
justice  of  peace  in  Pom f rait,  aijd  th^^SeryZwasHohe  there,  and  the 
plaintiff  was  th€i:eQf_£US2ected,_and  brought  before  him;  et  quia  vide- 
batur  suspectuosus,  he  detained  him  in  his  house  during  that  time  in 
the  declaration  mentioned,  to  examine  him  and  one  Pole,  who  was  not 
apprehended,  concerning  the  said  robbery;  and  afterwards,  upon  the 
29th  September,  delivered  him  over  to  the  new  mayor ;  and  traverseth 
the  imprisonment  in  London. 

And  it  was  thereupon  demurred;  and  adjudged,  that  the  induce- 
ment to  the  traverse  was  not  good ;  for  a  justice_oi_peace-caQnot  de- 
tain a  person  suspected  ip  pric;nr|  but  durigo^-a-eeiuxiiient  time,  only 
to  examine  him^_jwhich  the  law  intends  to  be  three  days,  and  within 
that  time  to  ta^  his  exammation,^and  sendlliinL-to_^sotT7~"  f or  he 
ought  not  to  detain  him  as  long  as  he  pleaseth,  as  he  here  did  eighteen 
days;  neither  ought  he  to  detain  him  in  prison  in  his  own  house,  but 
he  is  to  commit  him  to  the  common  gaol  of  the  county ;  for  otherwise, 
when  the  justices  come  to  deliver  the  gaol,  he  is  not  in  the  gaol,  and 
may  not  be  delivered,  and  so  should  lie  longer  than  is  reasonable. 
Vide  St.  5  Hen.  IV,  c.  10 ;  2  Edw.  IV,  c.  8.  And  here  he  took  not 
any  examination,  but  delivered  him  over  to  the  new  mayor  without 
examination,  which  was  not  lawful.  And  therefore  it  was  adjudged 
for  the  plaintiff. 


CHARGE  TO  THE  GRAND  JURY. 
(Somersetshire  Assizes,  1849.    2  Car.  &  K.  Sio.) 

At  the  Taunton  assizes,  April  2,  1849,  Lord  Den  man,  C.  J.,  in  his 
charge  to  the  grand  jury,  said: 

In  all  cases  in  which  prisoners  charged  with  felony  have  witnesses, 
and  those  witnesses  are  in  attendance  at  the  time  of  the  examination 
before  the  magistrate,  I  should  recommend  that  the  magistrate  should 
hear  the  evidence  of  such  witnesses  as  the  prisoner,  on  being  asked, 
wishes  to  be  examined  in  his  defense.  If  such  witnesses  merely  ex- 
plain what  has  been  proved  in  support  of  the  charge,  and  are  believed, 
they  will  actually  have  made  out  a  defense  on  behalf  of  the  accused, 
and  there  would  of  course  be  no  necessity  for  any  further  proceed- 
ings; but  if  the  witnesses  so  called  contradict  those  for  the  prosecu- 
tion in  material  points,  then  the  case  would  be  properly  sent  to  a  jury 
to  ascertain  the  truth  of  the  statements  of  each  party;  and  the  depo- 
sitions of  the  prisoner's  witnesses  being  taken  and  signed  by  them, 
should  be  transmitted  to  the  judge,  together  with  the  depositions  in 
support  of  the  charge. 


Ch.  6)  PROCEEDINGS   BEFORE    MAGISTRATE.  75 

HEPLER  V.  STATE. 

(Supreme  Court  of  Wisconsin,  1878.    4.3  Wis.  470.) 

This  was  a  prosecution  for  selling  intoxicating  liquors  without  li- 
cense.-    *     "^     "*' -      "  ' 

Ryan,  C.  J.  It  has  been  too  long  and  too  well  established  for  dis- 
cussion that  the  justice's  conviction  must  appear  on  its  face  to  be  with- 
in his  juristlicUon.  "         ~^ 

Section  5,  c.  121,  Rev.  St.,  amended  bvchapter  35  of  1868,  requires 
that  the  justice,  on  the  return  of  the  "warraiTt^withthe  accused,  shall 
proceed  to  hear,  try  and  determine  tlip^<^S^>  A\itli]n  one  day,  unless 
continued  for  cause.  This  provision  must  receive  a  reasonable  con- 
struction. It  cannot  be  construed  to  impose  impossibilities  upon  the 
justice,  or  to  require  him  to  dispose,  within  one  day,  of  a  case  neces- 
sarily occupying  more  than  one  day  in  hearing.  The  necessary  length 
of  a  case  would  be  cause  for  its  continuance  from  day  to  day.  Other 
causes  might  warrant  a  longer  continuance.  But  the  statute  does  re- 
quire the  justice  to  hear,  try  and  determine  the  case  of  a  prisoner 
brought  before  him  within  the  day,  unless  it  be  continued  for  cause. 
The  justice's  jurisdiction  can  survive  the  day  by  continuance  only.  If 
more  than  one  day  intervene  between  the  return  and  the  judgment,  the 
conviction  must  show  the  continuance  for  cause ;  perhaps  the  cause 
itself. 

The  justices  docket  here  shgw^  ^^  interval  of  some  three  days  be- 
tween the  return  and  the  judgment,  and  does  not  show  any  continu- 
anc;^- — TkiiTis  fatal.  TTTg  juiisdtctTon  of  the  justice^  convict  appears 
on  the  face  of  the  proceeding  to  have  been  lost  before  the  conviction. 

The  justice,  indeed,  undertakes  to  connect  the  day  of  his  judgment 
with  the  day  of  the  return  by  stating  that  he  rendered  judgment  im- 
mediately. This  will  not  do.  It  rather  repels  than  imports  a  contin- 
uance. It  is  but  the  justice's  application  to  the  case  of  a  very  elastic 
word  (Richardson  v.  End,  43  Wis.  316),  and  can  be  held  to  signify 
no  more  than  the  justice  did,  in  what  he  considered  a  reasonable  time, 
that  which  the  statute  requires  him  to  do  on  the  day  of  the  return. 

The  judgment  of  the  court  below  is  reversed,  and  the  defendant  dis- 
charged. 

2  Part  of  the  statement  of  facts  is  omitted. 


76  BAIL.  (Ch.T 

CHAPTER  VII 
BAIL 


REX  V.  DALTON. 
(Court  of  King's  Bench,  1731.    2  Strange.  911.) 

The  defendant  had  the  misfortune  to  kill  his  schoolfellow  at  Eton. 
And  being  brought  up  by  habeas  corpus  to  the  Chief  Justice's  house, 
it  was  returned,  that  he  was  committed  by  the  coroner  for  manslaugh- 
ter. It  was  therefore  prayed  he  might  be  bailed.  But  the  Chief  Jus- 
tice said,  that  was  no  reason,  for  if  the  depositions  made  it  murder,  he 
would  not  bail  ;^  e  contra,  if  they  amounted  only  to  manslaughter,  he 
would  bail,  though  the  coroner's  inquest  had  found  it  murder.  And  he 
said  the  distinction  was  between  the  coronerViiiquest,  where  the  court 
can  look  into  the  depgsitions,  and  an  indictmem^<where  the  evidence 
is  secret.  Lord  Mohun's  Case  in  Salk.  104,"  was  in  point  (though  that 
was  at  Holt's  chamber,  and  not  in  court  as  the  book  reports  it)  and 
that  the  lords  bailed  him  after  an  indictment  for  murder  was  found. 
He  said  that  himself  refused  to  bail  Mr.  Clifton,  because  he  thought 
the  depositions  made  it  murder,  though  the  inquest  was  manslaughter 
only. 

The  bail  were  four  in  £4,000.  The  Ciiief  Justice  said,  it  had  been 
usual  to  take  them  in  a  sum,  or  body  for  body ;  and  that  where  they 
are  taken  corpus  pro  corpore,  it  was  a  mistake  to  imagine  the  bail 
were  to  be  hanged  if  the  principal  ran  away;  but  that  the  method  is 
to  amerce  them. 


REX  V.  JUDD. 
(Court  of  King's  Bench,  17SS.    2  Term  R.  2.5.j.) 

The  defendant  was  brought  up  on  this  day  by  a  writ  of  habeas 
corpus,  from  Hertford,  in  order  to  be  bailed. ^     *     *     * 

AsHHURST,  J.  However  improper  the  defendant's  conduct  appears 
to  have  been  upon  the  proceedings  before  the  justices,  yet  unless  it 
appears,  upon  the  face  of  the  commitment  itself,  that  the  defendant 
is  charged  with  a-ielony.  we  are^bound"  bv  the^abeas  corpus  act  to 
dis^nrgp  himj^Jaking  such  bail'  for  his  appearance  to  take  his  trial 
as  we  in  our  discretion  shall  think  fit,  according  to  the  circumstances 

1  Accord:  IMurder.  Reg.  v.  Chapman,  8  C.  &  P.  558  (1838).  Rape.  Reg. 
V.  Guttridge,  9  C,  &  P.  228  (1840). 

2  Part  of  the  statement  of  facts  and  the  opinion  of  Grose,  J.,  are  omitted. 


Ch.  7)  BAIL.  77 

of  the  case.  And  therefore  the  question  is,  whether  there  is  specified 
in  this  commitment  such  an  offense  as  amounts  to  felony?  It  is  admit- 
ted that  neither  of  the  two  first  charges  in  the  commitment  amounts 
to  felony.  With  respect  to  the  last  charge,  it  is  not  that  the  defend- 
ant was  an  accessory  with  Rand  in  feloniously,  but  only  with  will- 
fully and  maliciously,  setting  fire  to  a  parcel  of  unthreshed  wheat. 
And  though  it  is  not  necessary  that  the  word  "feloniously"  should  be 
used  in  the  commitment,  yet  it  ought  to  appear  on  the  facts  stated  to 
be  in  law  a  felony,  and  within  the  description  of  the  act.  Now  the 
statute  has  only  made  it  felony  to  set  fire  to  a  cock,  mow,  or  stack,  of 
corn ;  and  the  defendant  is  not  charged  with  either  of  these.  What- 
ever words  the  Legislature  used,  we  must  suppose  that  they  knew  the 
meaning  of  them;  and  if  a  justice  uses  the  same  words,  we  are  bound 
to  suppose  that  he  intended  them  in  the  same  sense ;  but  if  he  makes 
use  of  other  words,  he  must  be  more  precise. 

Now  here  a__pnrcel  ofc.orn  is  too  indefinite  a  description.  It  does 
not  come  within  the  descnption  of  tlie  act,  and  we  cannot  say  how 
much  it  is.  Twenty  ears  of  wheat  is  a  parcel.  Therefore  I  am  of  opin- 
ion that,  as  the  warrant  of  commitment  does  not  charge  the  defend- 
ant with  a  felony,  we  are  bound  to  bail  him.  With  regard  to  the  quan- 
tum of  the  bail,  although  the  nature  of  the  defendant's  crime  is  not 
very  accurately  stated,  yet  as  sufficient  appears  on  the  depositions,  re- 
turned with  the  commitment,  to  shew  that  he  has  at  least  been  guilty 
of  an  enormous  offense,  I  think  we  ought  to  take  ample  security  for 
his  appearance ;  and  _tliat  he  himself  should  be  bound  in  il,000.  and 
four  sureties  in  ioOO.  each.  "^ 


REX  V.  KIMBERLEY. 
(Court  of  King's  Bench,  1729.    2  Strange,  848.) 

The  defendant  was  brought  up  by  habeas  corpus,  being  committed 
to  W^oodstreet-Counter,  for  feloniously  marrying  Bridget  Reading, 
contrary  to  an  Irish  act  of  Parliament,  6  Anne,  in  order  to  be  trans- 
mitted to  Ireland  to  be  tried,  the  ofifense  being  committed  there. 

Strange  moved  that  he  might  be  discharged  or  bailed,  insisting  that 
justices  of  the  peace  in  England  are  confined  to  act  only  as  to  such 
offenses  as  are  against  the  laws  of  England,  and  committed  in  Eng- 
land ;  and  the  proviso  in  the  habeas  corpus  act  gives  no  power  as  to 
offenses  in  Ireland7  but  teavesTit  on  the  former  practice. 

Sed  Per  Curiam.  It  has  been  done  in  Colonel  Lundy's  Case,  2 
Ven.  314,  and  in  3  Keb.  785,  the  court  refused  to  bail  a  man  commit- 
ted for  a  murder  in  Portugal.  If  application  is  not  made  to  have  him 
sent  over  in  a  reasonable  time,  you  may  apply  again. 

Thereupon _the_jl££endaiiJL,^vas_remanded,  and  upon  application  to 
the  Secretary  of  State,  it  was  referred  to  l\Ir.  A.ttorney  General,  to 
consider  of  the  manner  of  sending  him  over;   and  upon  an  attendance 


78  BAIL.  (Ch.  7 

by  counsel,  Mr.  Attorney  reported,  that  he  might  be  taken  from  the 
Counter  by  a  messenger,  who  should  have  a  warrant  to  carry  him  to 
Ireland,  whither  he  was  carried,  tTrcdTxnndemned,  and_executed. 


REX  V.  WYNDHAM. 
(Court  of  King's  Bench,  1715.     1  Strange,  2.) 

The  defendant  Sir  William  Wyndham  being  brought  up  by  the  lieu- 
tenant of  the  Tower,  Serjeant  Pengelly,  Mr.  Jeffries,  Mr.  Reeve  and 
Mr.  Hungerford  moved  that  he  might  be  admitted  to  bail,  and  offered 
several  arguments  to  induce  the  court  to  bail  him,  which,  with  the  an- 
swers given  thereto  by  Sir  Joseph  Jekyll,  Mr.  Attorney  and  Solicitor,, 
are  comprised  in  the  opinion  of  the  court,  which  was  delivered  the 
last  day  of  the  term,  ut  sequitur: 

ParkRr,  C.  J.  This  is  a  commitment  by  the  Secretary  of  State  for 
high  treason  generally;  it  has  been  moved  on  behalf  of  Sir  William 
Wyndham  that  he  might  be  admitted  to  bail.  I  shall  take  notice  of 
the  arguments  on  both  sides,  and  of  the  particular  circumstances  of 
this  case,  which  have  been  laid  before  the  court,  with  as  much  clear- 
ness as  the  little  time  we  have  had  to  consider  of  the  matter  since  it 
was  spoke  to,  and  the  extraordinary  business  of  this  day,  will  permit 
me. 

It  has  been  admitted  on  all  hands  that  the  court  has  a  discretionary 
power  in  this  case ;  and  I  think  the  arguments  which  have  been  made 
use  of  by  the  counsel  of  Sir  William  Wyndham  are  upon  these  five 
points : 

1.  Exception :  That  the  commitment  is,  that  he  shall  be  kept  safe 
and  close;  it  has  been  insisted,  this  is  more  than  can  be  justified  by 
law.  This  exception  is  offered  without  any  authority  to  support  it,  and 
is  against  an  infinite  number  of  precedents.  But  admitting  this  were 
a  good  exception,  the  consequence  would  not  be  that  we  should  dis- 
charge Sir  William  Wyndham,  but  only  qua  tenus  his  being  kept  close. 
The  keeping  him  safe,  is  only  by  way  of  admonition  to  the  officer,  to 
put  him  in  mind  of  his  duty,  and  the  punishment  which  he  must  un- 
dergo in  case  of  an  escape.  The  common  process  which  goes  to  the 
sheriff,  commands  him  to  take  the  defendant  et  eum  salvo  custod.' 

2.  Exception  has  been  taken :  That  the  charge  is  not  said  to  be 
upon  oath ;  and  if  a  Secretary  of  State  might  commit  people  without 
oath,  the  whole  nation  would  be  their  tenants  at  will.  In  answer  to 
this,  I  must  observe,  as  I  did  before,  that  the  precedents  are  many  of 
them  so,  and  no  authority  has  been  cited  in  support  of  the  objection. 
The  not  mentioning  it  to  be  upon  oath,  is  not  conclusive  that  it  was 
not  upon  oath.  In  Ferguson's  Case  this  exception  was  overruled, 
Trin.  2  W.  &  M.  and  it  was  held  in  Kendal's  Case,  that  an  imprison- 
ment may  be  without  oath ;    and  also  in  the  House  of  Lords,  that 


Ch.7)  BAIL.  79 

commitments  may  be  without  oath.  If  a  man  be  taken  with  treasona- 
ble papers,  he  may  be  committed,  and  any  magistrate  may  commit 
super  visum,  without  oath. 

3.  Exception :  That  the  commitment  is  generally  for  high  treason ; 
and  it  has  been  urged,  that  some  particular  species  of  treason  must  be 
expressed,  and  that  it  must  have  so  much  certainty,  as  to  appear  to  be 
high  treason  to  the  court.  2  Inst.  52,  591.  I  think  this  opinion  is  not 
to  be  maintained.  We  presume  a  magistrate  does  right,  till  the  con- 
trary appears ;  and  it  has  never  been  held  necessary  to  express  the 
overt  act  in  the  commitment.  My  Lord  Coke  puts  the  case  of  trea- 
son contra  personam  regis,  and  admits  that  to  be  sufficient. 

4.  It  has  been  argued  in  favor  of  this  last  exception,  that  the  habeas 
corpus  act  supposes  the  crime  to  be  specifically  mentioned ;  because 
it  provides,  that  no  person  shall  be  committed  a  second  time  for  the 
same  offense,  after  he  has  been  once  bailed ;  the  consequence  of  which 
is,  that  the  court  must  judge  by  the  two  commitments  whether  the 
offense  be  the  same.  This  argument  will  appear  of  little  weight,  if 
we  consider  how  easy  it  is  to  vary  the  expression  in  the  second  com- 
mitment, and  yet  keep  close  to  the  principal  charge.  Suppose  a  man 
is  committed  for  levying  war  against  the  king,  and  after  he  is  dis- 
charged is  again  committed  for  compassing  the  death  of  the  king. 
These  two  facts  appear  very  different  upon  the  face  of  the  commit- 
ments, and  yet  he  that  is  charged  with  the  one,  may  likewise  be  charged 
with  the  other;  and  if  this  objection  should  be  held  good,  the  conse- 
quence would  be,  that  a  man  may  be  committed  as  often  as  the  Sec- 
retaries of  State  can  vary  the  expression ;  for  several  species  of  trea- 
son may  be  the  same  fact. 

5.  The  Case  of  Kendal  and  Roe,  1  Salk.  347,  5  Mod.  78,  has  been 
relied  upon  by  the  counsel  of  Sir  William  Wyndham  as  a  case  in 
point.  But  I  am  of  opinion,  it  will  not  come  up  to  that  now  before  us. 
They  were  committed  by  a  warrant  dated  24  Oct.,  1695,  being  charged 
with  the  assisting  to  the  escape  of  Sir  James  Montgomery,  who  was 
guilty  of  high  treason.  Exception  was  taken,  that  the  treason  of  Sir 
James  Montgomery  was  not  expressed  in  the  warrant ;  and  the  fact 
he  was  committed  for  might  not  be  high  treason,  though  mentioned 
to  be  so.  The  case  did  not  turn  upon  that  single  point,  for  it  was  held 
necessary,  that  Sir  James  Montgomery  should  be  averred  guilty  of, 
and  committed  for  high  treason.  And  because  both  those  particulars 
were  not  expressed  in  the  warrant,  the  defendants  were  admitted  to 
bail.  A  commitment,  it  is  true,  for  stealing  fruit  generally  would  not 
be  good,  because  if  it  was  upon  trees  it  would  be  no  felony.    2  Inst.  52. 

There  is  a  case  in  Anderson,  which  was  to  be  a  direction  for  the 
future  in  making  commitments,  which  is  entered  in  the  council  book. 
In  Crofton's  Case,  which  is  reported  in  1  Sid.  78,  1  Keb.  305,  it  was 
resolved,  that  a  commitment  for  high  treason  generally  is  good. 
Vaugh.  142. 


80  BAiii.  (Ch.  7 

I  think  I  have  now  taken  notice  of  all  the  exceptions  taken  to  the 
commitment.  The  next  thing  relied  upon  is  the  illness  of  Sir  William 
Wyndham,  which  appears  to  be  a  distemper  incident  to  the  family. 
We  are  of  opinion,  that  this  is  not  ground  enough  singly,  to  induce 
the  court  to  admit  Sir  William  to  bail ;  for  it  must  be  a  present  indis- 
position, arising  from  the  confinement;  and  so  we  held  this  term  in 
the  Case  of  Mr.  Harvey  of  Combe,  who  stabbed  himself  after  his  ex- 
amination ;  and  was  refused  to  be  bailed,  because  his  illness  was  from 
an  act  of  his  own.  But  I  shall  not  enlarge  upon  this  head,  since  we 
are  all  of  opinion  Sir  William  Wyndham  ought  to  be  bailed.  There 
have  been  four  terms  passec^^smeeJiis-CQmxuitmgnt,  and  one  assizes  in 
Somerspfshife,  out  ot  wHirh^^mty  it  has  been  hinted  the  ground  of 
the  romplaint  .against  Sir  WilHam  Wvndham  aris.es:  and  therefore, 
there  being  no  jm^secution  against  him,  he  must  be  admitted  to  bail, 
himself  in  ilO,000.  and  four  ^rrreties  in  i5,000.  each. 


REGINA  v.  RIDPATH. 

(Court  of  Queen's  Bench,  1713.     10  Mod.  152.) 

A  recognizance  was  entered  into  by  Ridpath,  with  securities,  where- 
by he  was  bound  to  appear  the  first  day  of  the  term  ad  respondendum, 
etc.,  in  the  meantime  to  his  good  behavior,  and  not  to  depart  without 
the  license  of  the  court. 

An  information  was  preferred  against  him  by  the  Attorney  General; 
to  which  information,  by  reason  of  some  defect  in  the  pleading,  the 
Attorney  General  thought  fit  to  enter  a  nolle  prosequi,  and  then  the 
Attorney  General  exhibited  another. 

It  was  insisted  in  favor  of  Ridpath  and  his  securities: 

First.  That  the  words  "ad  respondendum"  must  be  extended  to 
those  crimes  only,  the  suspicion  of  which  was  the  cause  of  his  commit- 
ment and  entering  into  the  recognizance,  and  not  to  the  crimes  he 
should  afterwards  commit,  or  be  charged  with ;  for  then  it  would  be 
utterly  impossible  for  a  man  to  get  anybody  to  be  bound  in  a  recog- 
nizance with  him ;  an  opinion  of  the  innocence  of  the  person,  as  to  the 
crime  charged,  being  probably  the  only  motive  that  can  be  sufficient 
to  induce  men  to  become  bound  for  others. 

Secondly.  That  "ad  respondendum"  refers  to  the  first  day  of  the 
term,  when  he  was  bound  to  appear. 

Thirdly.  That  the  entering  of  a  nolle  prosequi  was  a  bar  to  the 
offense  contained  in  the  information ;  at  least  that  it  was  a  discharge 
from  any  further  prosecution  for  it ;  and  that  it  was  all  one,  whether 
he  was  discharged  from  the  recognizance  by  rule  of  court  made  for 
that  purpose,  or  by  a  judgment,  that  by  a  necessary  consequence 
amounted  to  a  discharge. 


BAIL.  81 


Cb.7) 

But  Tut  Court  were  of  opinion,  that  the  recognizance_extended  to 
all  crimes  whatever  which  h^^shoiild^  be,  cliaxgeII3Sthi_.a^cLiIiat  if  it 
liad  relation  to  anv  particuIiFci^ie  onj^^  he  mfntionedjn  the 

recognizance  i^^^but-TnaOTo^^  7  That 

there  was  no  such  inconvenience~as  was  pretended;  the  bail  in  this 
case  being  bound  in  a  sum  certain,  and  not  to  stand  in  the  place  of 
the  principal,  as  in  civil  cases ;  that  the  person's  not  appearing  accord- 
ing  to  his  recognizance,  his  absence  (be  the  cause  or  reason  of  it  what 
it'vvill)  was  the  cause  of  the  forfeiture  of  the  recognizance.  That 
anciently  in  special  bail  in  civil  actions,  where  the  bail  is  to  stand  in 
the  place  of  the  principal,  bail  to  one  action  was  to  stand  bail  to  all  ac- 
tions that  he  should  be  charged  with  when  in  court.  That  this  was 
hard  in  case  of  special  bail,  and  is  therefore  now  altered,  though  al- 
tered only  bv  rule  of  court ;  and  that  as  to  common  bail  the  law  is  still 
the  same.    That  the  nolle  prosequi  was  neither  a  bar  nor  discharge^* 


GRESHAM  V.  STATE. 

(Supreme  Court  of  Alabama,  1872.    48  Ala.  025.) 
B.  F.  Saffold,  J.*     The  appeaHsJroiTL^Judgment  absolute  on  a 
forfeited  baiUaond. 

On  the  loth  of  March,  1871,  the  appellants  entered  into  an  obliga- 
tion of  bail,  in  the  form  prescribed  by  section  4239  of  the  Revised 
Code,  for  the  appearance  of  William  M.  Gresham  at  the  next  term 
of  the  circuit  court,  to  answerL.a^xharge  of  manslaughter.     *     * 

3  Accord-  State  v.  Randolph,  22  Mo.  474  (18.50);  People  v.  Oillman.  12,1 
N.  y.  372,  26  N.  E.  469  (1891).     Cf.  State  v.  Bryant,  55  Iowa,  451,  8  N.  A\ . 

So  where  the  recogiMzance  specifies  the  offense  for  which  the  accused  is 
to  appear  and  answer,  if  it  also  provides  that  the  defendant  shall  not  depart 
without  leave,  it  is  not  an  answer  to  say  that  the  defendant  misht  have  ob- 
tained his  discharge  from  the  court,  either  because  nothing  was  alleged 
against  him  by  indictment,  or  because  he  was  not  indicted  for  the  same  of- 
fense as  that  lipon  which  he  had  been  bound  over.  Commonwealth  v.  Teevens, 
143  Mass.  210,  9  N.  E.  524,  58  Am.  Rep.  131  (1887).  Or  that  the  ?iji"fUurv 
had  returned  "no  bill."  State  v.  Fitch,  2  Nott.  &  McC.  (te.  C.)  ooS  (1820). 
Or  that  the  accused  had  previously  been  acquitted  on  an  indictment  for  the 
same  offense.  Archer  v.  Commonwealth.  10  Grat.  (Va.)  627  (1854).  Or  even 
that  he  had  been  tried  and  found  not  guilty.  An  order  of  the  court  discharg- 
ing him  is  requisite.     State  v.  Stout,  11  N.  J.  Law,  124  (1829). 

If  the  recognizance  is  only  for  an  appearance  at  the  next  term  of  the  court, 
bail  are  discharged  when  tliey  produce  the  defendant  at  that  term,  and  the 
court  cannot,  against  the  express  dissent  of  the  bail,  respite  the  recogmzance 
to  a  subsequent  term.  People  v.  Clary  &  Fleming.  17  Wend.  (N.  Y.)  374  (183  <) ; 
Keefhaver  v.  Commonwealth,  2  Pen.  &  W.  (Pa.)  240  (IS'.O).  If,  after  a  recog- 
nizance is  entered  into,  the  accused  is  arrested  on  a  bench  warrant  issued 
ui)on  an  indictment  for  the  same  offense  and  he  subsequently  escapes,  his 
bail  are  discharged.     People  v.  Stager,  10  Wend.  (N.  Y.)  431  (1833). 

4  Part  of  this  case  is  omitted. 
Mik.Ck.Pr.— 0 


82  BAIL.  (Ch.  7 

No  indictment  for  manslaughter  appears  to  have  been  found  against 
the  defendant,  but  he  was  indicted  at  the  spring  term,  1871,  for  the 
murder  of  Thomas  W.  Ivey.  At  the  fall  term,  1871,  the  said  defendant, 
not  having  been  before  arrested,  came  into  court  and  surrendered, 
whereupon  an  alias  capias  was  immediately  issued  and  he  was  formally 
arrested.     *     *     * 

The  essential  statement  which  the  entry  of  the  conditional  judgment 
should  contain  is  that  the  accused  was  required  to  answer  the  charge 
which  the  recognizors  have  stipulated  that  he  should  answer.  This  is 
necessary  to  show  a  breach  of  the  bond.  If  the  accused  is  required  to 
answer  a  charge  variant  from  that  described  in  the  condition  of  the 
bail  bond,  this  will  not  show  a  breach.  Howie  &  Morrison  v.  State, 
1  Ala.  113 ;  State  v.  Weaver,  18  Ala.  293. ^  Section  4245  of  the  Re- 
vised Code  provides  that  the  undertaking  is  forfeited  by  the  failure 
of  the  defendant  to  appear,  although  the  offense  is  incorrectly  de- 
scribed in  such  undertaking ;  the  particular  case  or  matter  to  which 
the  undertaking  is  applicable  being  made  to  appear  to  the  court.  This 
of  course  applies  to  such  misdescriptions  as,  nevertheless,  apprise  the 
parties  of  the  nature  of  the  offense  for  which  the  indictment  is  to  be 
preferred;  the  same  being  indictable.  It  must  also  be  taken  to  ap- 
ply to  cases  in  which  the  indictment  embraces  or  includes  the  particu- 
lar indictable  offense  mentioned  in  the  undertaking  of  bail.  While  it 
would  be  manifestly  unjust  to  hold  a  bail  bond  forfeited  because  the 
accused  did  not  appear  to  answer  an  indictment  for  an  offense  alto- 
gether different,  and  not  even  suggestive  of  the  one  mentioned  in  it, 
it  would  be  equally  unreasonable-te-iel__hitH-gcr~frre  because  the  grand 
jury  deemed  his  conduct  morg-w-it  knl  tn  HeT^iie^  than  the  magistrate. 
He  wouI3^  \Y.ell  know  that  a  charge  of  manslaughter  mi^ht  result  in 
an  indictmentjbrjxiurder.  ^ 

But  the''3'udgment  nisi  does  not  state  that  the  accused  was  indicted 
for  any  offense.  This  is  a  fatal  omission.  There  could  be  no  failure 
to  appear  without  a  demand  for  appearance,  and  without  an  indict- 
ment there  could  be  no  demand,  and  consequently  no  breach.  Hall  v. 
State,  15  Ala.  431 ;   Badger  &  Clayton  v.  State,  5  Ala.  21. 

As  the  accused  was  on  bail,  the  clerk  was  at  liberty  to  make  a  minute 
entry  of  the  indictment.  Rev.  Code,  §  4148.  If  the  conditional  judg- 
ment had  stated  an  indictment  for  murder,  we  think  there  would  have 
been  a  forfeiture  of  the  bond  by  the  failure  of  the  accused  to  appear, 
notwithstanding  the  stipulation  for  a  case  of  manslaughter. 

The  alias  sci.  fa.  to  W.  M.  Gresham  was  defective  also  in  not  stat- 
ing a  default. 

The  judgment  is  reversed,  and  the  cause  remanded. 

5  Accord:  Gray  v.  State,  43  Ala.  41  (1SG9) ;  People  v.  Hunter,  10  Cal. 
502  (1858). 


Ch.  7)  BAiu  83 

DEVINE  V.  STATE. 
(Supreme  Court  of  Teuuessee,  I808.    5  Sneed,  633.) 

McKiNNEY,  j,6  *  *  *  ^^t  the  May  term,  1856,  of  the  circuit 
court  of  Monroe,  the  plaintiff  in  error,  and  one  Hensley,  entered 
into  recognizance  in  the  sum  of  fifteen  hundred  dollars,  for  the  ap- 
pearance of  oug  Morgan,  at  the  next  term  of  the  court,  to  wit,  the 
September  term,  ISoGTlo  answer  a  charge  "for  passing  counterfeit 
bank  bills,"  of  which  he  stood  indicted  m  said  court:  KTorgah  failed 
To  appear,  and  a  judgment  nisi  w^  rendered  against  hTs~baii>  Two 
writs  of  scire  facias  were  issued  thereon,  both  of  which  were  served 
on  the  plaintiff  in  error,  and  returned  "not  found"  as  to  Hensley. 

Devine  pleaded,  among  other  matters  not  necessary  to  be  noticed, 
in  substance,  that  after  their  undertaking  for  his  appearance,  and  be- 
fore the  ensuing  term,  at  which  he  was  rec[uired  to  appear,  iMorgan 
was  arrested  in  Henderson  coiiul^L,_l;JorthCaroTina7Trp©ft^^  of 

felony  committed  in  said.countyand_stal£,_iLnd  was-jn  custody  of  the 
sheriff  upon  said  charge  oT  fejonyat  the  time  the  forfeiture,  in  the 
scire  facias  mentioned,  was_taEin_against  his  bail,  whereby  the  appear- 
ance of  said  MorgarL-Sitas.  prevented,  etc. 

To  this  plea  there  was  a  demurrer,  which  was  sustained ;  and  this, 
is  assigned  for  error. 

The  judgment  on  the  demurrer  was  corrects— Tloe-plsajs  bad. 

First.  It  may  be  true,  as  alleged  in  the  plea,  that,  at  the  time  the 
judgment  nisi  was  rendered  against  the  bail,  Morgan  may  have  been 
in  confinement,  in  another  state ;  and  it  may  also  be  true  that,  before 
the  final  judgment  on  the  scire  facias,  which  was  at  January  term. 
1858,  he  may  have  been  discharged,  and  at  liberty  to  appear.  H  it 
were  conceded,  therefore,  that  the  arrest  of  Morgan,  in  another  state, 
might  constitute  a  good  defense  for  the  bail,  the  plea  is  essentially 
defective,  because  it  does  not  show  that  the  bail  might  not  have  sur- 
rendered him  at  a  time  subsequent  to  the  judgment  nisi,  and  before 
final  judgment. 

Secondly.  But  we  are  of  the  opinion  that  the  arrest  and  imprison- 
ment of  the  principal  in  another  state,  or  government,  for  an  offense 
committed  in  the  latter  place,  after  the  recognizance  entered  into  here, 
is  no  excuse  for  the  failure  of  the  bail  to  surrender  him  at  the  time 
and  place  stipulated.  In  legal  contemplation,  upon  the  recognizance 
being  entered  into,  the  principal  was  delivered  into  the  "friendly  cus- 
tody" of  his  sureties,  instead  of  being  committed  to  prison.     4  Bl. 

Com.   301.      The   gir-ptj^      ImkI    nnn^m-il    rif  Uq  j2£I5DP  :     tliQr_vvprp   bouud 

at  their  peril,  to  k^'^pjxim  w'ti-"'n  the,  jnrisdictiom  and  to  haveTiis  per- 
son ready  to  surrender  when  demanded.  If  apprehensive  for  their 
own  safety,  they  had  the  right  to  a rTesTan^  commit  him  to  prison,  at 
any  time,  so  as  to  have  him  forthcoming  to  answer  the  charge  of 

«  The  statement  of  facts  is  omitted. 


84  BAIL.  (Ch.  7 

which  he  had  been  indicted,  as  they  had  voluntarily  undertaken  to  do. 
And  if  they  negligently  permitted  him  to  go  beyond  their  reach,  it  was 
their  own  folly,  and  they  must  abide  the  consequences. 

The  case  of  State  v.  Allen,  2  Humph.  258,  to  which  we  have  been 
referred,  is  very  different  from  this.  In  that  case  it  was  very  prop- 
erly held  that,  inasmuch  as  the  state,  through  the  action  of  the  execu- 
tive department  of  the  government,  had  taken  the  principal  out  of  the 
hands  of  the  sureties,  and  delivered  him  to  the  authorities  of  a  foreign 
state,  thereby  placing  it  beyond  the  power  of  the  sureties  to  surrender 
him,  the  state  was  precluded  from  exacting  the  forfeiture  in  the  face 
of  its  own  act. 

In  the  case  before  us,  the  failure  of  the  sureties  to  surrender  their 
principal  was,  in  view  of  the  law,  the  result  of  their  own  negligence, 
or  connivance,  in  suffering  their  principal  to  go  beyond  the  jurisdic- 
tion of  the  court,  and  from  under  their  control. 

Judgment  affirmed.^ 


GRAVES  v.  PEOPLE. 

(Supreme  Court  of   Illinois,   1850.     11   111.   542.) 

Treat,  C.  J.®  There  is  a  fatal  objection  to  the  scire  facias.  The 
recognizance  was  conditioned  for  the  appearance  of  William  H, 
Graves.  An  indictment  was  presented  against  Harrison  Graves,  and 
a  forfeiture  of  the  recognizance  entered  for  his  nonappearance.  This 
does  not  show  any  breach  of  the  obligation.  If  the  facts  of  the  case 
warranted  it,  there  should  lia'~5  beuii -a«-.axeni-ient  inthe  scire  facias 
that  H^i^p^qr  O^sves  was  the  same  person  who  entered  into  the  re- 
cognizance by  the  npme  of  WTTIiaj-n  HTGraves.  As  the  scire  facias 
shows  no  cause  of  action,  the  judgment  must  be  reversed;  but  an- 
other scire  facias,  containing  proper  averments,  may  be  prosecuted. 

Judgment  reversed. 

7  Accord:  Cain  v.  State.  55  Ala.  170  (1876);  State  v.  Horn,  70  Mo.  46G.  .35 
Am.  Rep.  437  (1879) ;  Yarbrough  v.  Commonwealth,  80  Ky.  151,  12  S.  W.  143, 
25  Am.  St.  Rep.  524  (1889) ;  King  v.  State,  18  Neb.  375.  25  N.  W.  519  (188.5). 
But  where  the  bail  allow  the  accused  to  go  into  another  state  and  while 
there  he  is,  after  the  forfeiture  of  the  recognizance,  delivered  on  the  requisi- 
tion of  the  Governor  of  a  third  state  for  a  crime  committed  (without  the 
knowledge  of  the  bail)  in  said  state,  and  Is  imprisoned  in  such  state  on  con- 
viction, the  bail  are  not  discharged  from  liability  on  their  recognizance  in  a 
suit  by  the  state  where  the  accused  was  first  arrested.  Taylor  v.  Taintor,  16 
Wall.  346.  21  L.  Ed.  287  (1872).  Where  the  condition  of  the  recognizance  becomes 
Impossible  by  the  act  of  God  or  of  the  law,  or  of  the  obligee,  the  default  is 
excused ;  hence  the  death  of  the  accused  (Merritt  v.  Thompson,  1  Hilt.  [N.  Y.] 
550  [18.58]),  or  his  imprisonment  at  the  date  of  appearance  by  authority  of 
the  state  (People  v.  Bartlett,  3  Hill  [N.  Y.]  570  [1842]),  excuses  the  bail; 
but  sickness  of  the  accused  (State  v.  Edwards,  4  Humph.  [Tenn.]  226  [1843] ; 
Piercy  v.  People,  10  111.  App.  219  [1881].  [Contra:  People  v.  Tubbs,  37  N.  Y. 
586  [1868])],  or  his  insanity  (Adler  v.  State.  35  Ark.  517,  37  Am.  Rep.  48 
[1880])  has  been  held  not  to  be  such  an  act  of  God  as  will  excuse  the  bail. 

8  Part  of  this  case  is  omitted. 


Ch.  8)  THE   GRAND   JURY.  85 

CHAPTER  VIII 
THE  GRAND  JURY 


The  sheriff  of  every  county  is  bound  to  return  to  every  session  of 
the  peace,  and  every  commission  of  oyer  and  terminer,  and  of  general 
gaol  delivery,  twenty-four  good  and  lawful  men  of  the  county,  some 
out  of  every  hundred,  to  inquire,  present,  do,  and  execute  all  those 
things  which  on  the  part  of  our  lord  the  king  shall  then  and  there  be 
commanded  them.  They  ought  to  be  freeholders,  but  to  what  amount 
is  uncertain ;  which  seems  to  be  casus  omissus,  and  as  proper  to  be 
supplied  by  the  Legislature  as  the  qualifications  of  the  petit  jury, 
which  were  formerly  equally  vague  and  uncertain,  but  are  now  set- 
tled by  several  acts  of  Parliament.  However,  they  are  usually  gentle- 
men of  the  best  figure  in  the  county.  As  many  as  appear  upon  this 
panel  are  sworn  upon  the  grand  jury  to  the  amount  of  twelve  at  the 
least,  and  not  more  than  twenty-three;  that  twelve  may  be  a  major- 
ity, which  number,  as  well  as  the  constitution  itself,  we  find  exactly 
described  so  early  as  the  laws  of  King  Ethelred :  "Exeant  seniores 
duodecim  thani,  et  prsefectus  cum  eis,  et  jurent  super  sanctuarium 
quod  eis  in  manus  datur,  quod  nolint  ullum  innocentem  accusare,  nee 
aliquem  noxium  celare." 

In  the  time  of  King  Richard  the  First  (according  to  Hoveden)  the 
process  of  electing  the  grand  jury  ordained  by  that  prince  was  as  fol- 
lows :  Four  knights  were  to  be  taken  from  the  county  at  large,  who 
chose  two  more  out  of  every  hundred,  which  two  associated  to  them- 
selves ten  other  principal  freemen,  and  those  twelve  were  to  answer 
concerning  all  particulars  relating  to  their  own  district.  This  number 
was  probably  found  too  large  and  inconvenient ;  but  the  traces  of  this 
institution  still  remain  in  that  some  of  the  jury  must  be  summoned 
out  of  every  hundred.  This  grand  jury  are  previously  instructed  in 
the  articles  of  their  inquiry  by  a  charge  from  the  judge  who  presides 
upon  the  bench.  They  then  withdraw,  to  sit  and  receive  indictments, 
which  are  preferred  to  them  in  the  name  of  the  king,  but  at  the  suit 
of  any  private  prosecutor,  and  they  are  only  to  hear  evidence  on  be- 
half of  the  prosecution;  for  the  finding  of  an  indictment  is  only  in 
the  nature  of  an  inquiry  or  accusation,  which  is  afterwards  to  be  tried 
and  determined;  and  the  grand  jury  are  only  to  inquire  upon  their 
oaths  whether  there  be  sufiicient  cause  to  call  upon  the  party  to  an- 
swer it.  A  grand  jury,  however,  ought  to  be  thoroughly  persuaded  of 
the  truth  of  an  indictment  so  far  as  their  evidence  goes,  and  not  to 
rest  satisfied  merely  with  remote  probabilities,  a  doctrine  that  might 
be  applied  to  very  oppressive  purposes. 


86  THE    GRAND   JURY.  (Ch.  8 

The  grand  jury  are  sworn  to  inquire  only  for  the  body  of  the  coun- 
ty, pro  corpore  comitatus ;  and  therefore  they  cannot  regularly  in- 
quire of  a  fact  done  out  of  that  county  for  which  they  are  sworn,  un- 
less particularly  enabled  by  an  act  of  Parliament. 

When  the  grand  jury  have  heard  the  evidence,  if  they  think  it  a 
groundless  accusation,  they  used  formerly  to  indorse  on  the  back  of 
the  bill  "Ignoramus,"  or,  "We  know  nothing  of  it,"  intimating  that, 
though  the  facts  might  possibly  be  true,  that  truth  did  not  appear  to 
them;  but  now  they  assert  in  English  more  absolutely  "Not  a  true 
bill,"  or  (which  is  the  better  way)  "Not  found,"  and  then  the  party 
is  discharged  without  further  answer.  But  a  fresh  bill  may  after- 
wards be  preferred  to  a  subsequent  grand  jury.  If  they  are  satisfied 
of  the  truth  of  the  accusation,  they  then  indorse  upon  it  "A  true  bill," 
anciently  "Billa  vera."  The  indictment  is  then  said  to  be  found,  and 
the  party  stands  indicted.  But  to  find  a  bill  there  must  be  at  least 
twelve  of  the  jury  agree,  for  so  tender  is  the  l*aw  of  England  of  the 
lives  of  the  subjects,  that  no  man  can  be  convicted  at  the  suit  of  the 
king  of  any  capital  offense,  unless  by  the  unanimous  voice  of  twenty- 
four  of  his  equals  and  neighbors ;  that  is,  by  twelve  at  least  of  the 
grand  jury,  in  the  first  place,  assenting  to  the  accusation,  and  after- 
wards by  the  whole  petit  jury  of  twelve  more  finding  him  guilty  upon 
his  trial.  But  if  twelve  of  the  grand  jury  assent,  it  is  a  good  present- 
ment, though  some  of  the  rest  disagree;  and  the  indictment,  when  so 
found,  is  publicly  delivered  into  court. 

4  Black.  Comm.  302  et  seq. 


ANONYMOUS. 
(Court  of  King's  Bench,  1352.    27  Liber  Assisarum,  pi.  63.) 

One  G.  was  indicted  in  the  King's  Bench  for  that  being  one  of  the 
enditors  that  indicted  certain  persons  of  divers  felonies,  they  sued  him 
for  betraying  the  counsel  of  thp_King,  for  that  he  had  openly  shown 
to  others  what  things  tl-tf^-said  tip-sons  were  indicted  for^  and  thus  be- 
trayed the_coimselofthe  King.  For  this  he  was  arraigned  as  of  fel- 
ony. And  Sliardelow— ^sDme  judges  would  hold  it  treason,  but  he  was 
arraigned  only  of  felony,  and  was  acquitted.  Quaere,  what  would  have 
been  the  judgment  if  he  had  been  convicted? 


STATE  V.  WOOD. 

(Supreme  Judicial  Court  of  New  Hampshire,  1873.    53  N.  H.  484.) 

Sargent,  C.  J.^     *     *     *     The  caliing^teJaremaa-Ql^e  grand 
jury_to  testify  what  the  evidence  was  before  that  jury,  we  thmk,  was 

1  Part  of  this  case  is  omitted. 


Q^  g\  THE   GRAND   JURY.  °* 

also-i^istifiodJ^^the  authorities.    In  1  Chit.  Cr.  Law,  §  317.  it  is  said 
that  the  true  object  of  the  secrecy  required  of  the  grand  jury  is  to 
orevent  the  evidence  produced  before  the  grand  jury  troni  being  coun- 
teracted by  subornation  of  perjury  on  the  part  of  the  defendant    and 
that    when  a  witness  upon  the  trial  swears  differently  from  what  he 
did  before  the  grand  jury,  they  (the  grand  jurors)  may  mform  the 
iudo-e  who  may  cause  the  witness  to  be  prosecuted  for  perjury  on  the 
Jesth^'ony  of  the  grand  inquest.    See,  also,  4  Black.  Com.  126   and  note 
by  Christian;    2  Russell  on  Crimes,  912.     In  lompson  v.  Mussey    3 
Greenl    (Ue.)  305,  it  was  proved  what  the  testimony  was  before  the 
grand  jury;  but  it  is  not  clear  whether  by  the  P^^^f^^^^ting  officer  alone 
or  by  the  aid  of  the  jurors.    But  in  Low's  Case,  4  Greenl.  (Me.)  439 
16  Am.  Dec.  271,  the  testimony  of  the  grand  jurors  was  received,  not 
so  much  to  show  what  the  testimony  was,  as  to  show  that  twelve  of 
the  jurors  did  not  concur  in  finding  the  bill  of  indictment.    And  it  was 
held    contrary  to  the  general  holding  on  that  subject,  that  a  case  for 
the  defendant  might  be  made  out  in  that  way-which  was  goj"?  ^"ch 
further  than  the  present  case.    In  1  Wharton's  Am.  Cr.  Law  (6th  Ed.) 
S  508    this  matter  is  discussed,  and  the  authorities  cited  and  com- 
mented on,  from  which  I  j^tdge  the  weiglit_^o^uthority  now  to  be 
that  a  grand  juror  may  be  cowoedlELUuJ^smx^iidl^l^  to 

promote  the  caus^_ofJustice,.::^hnt  the  wiUiesses_^efore  the  grand 
jury  testified  to,  either  to  contradict  such  witnesses,  oTTTfterwise.  ^  ^^ 
In  Commonweft4ttrv:TTeaC-TrGray  (MassT)  167,  71  Am.  Dec.  .41 
the  question  arose  in  its  present  form,  whether  the  testimony  of  grand 
jurors  is  admissible  to  prove  that  one  of  the  witnesses  in  behalf  of  the 
prosecution  testified  differently  before  them  from  the  testimony  be- 
fore the  trial  jurv.    In  the  opinion,  Bigelow,  J.,  says:     As  to  the  com- 
petency of  such  evidence,  the  authorities  are  not  uniform.    The  weight 
of  it  is  in  favor  of  its  admissibility.    On  principle,  it  seems  tous  to  be 
competent."     He  then  states  the  grounds  of  his  opimon,^  which  seem 
to  us  quite  satisfactory  and  sufficient.     Such  is  the  opmion  of  Mr. 
Bishop,  as  expressed  upon  a  review  and  examination  of  the  auAori- 
ties  on  that  subject.     1  Bish.  Criminal  Procedure  (1st  Ed.)  §  .oO.     I 
think  the  practice  in  this  state  has  been  the  same  way.^  ^ 
We  think  this  exception  must  be  overruled. 

2  Aprorrt-    Crocker  v    State,  Meigs  (Tenn.)  127  (1S38) ;    Gordon  v.  Common- 
weatth%2Pa    ?16    37  Am.  Rep.   672   (1879).     Also  to  prove  that  a  certain 

oH  a  Witness  niav  testify  as  to  what  he  stated  before  the  grand  jurj.  Keg. 
?^'oibrorCa;.TM.y2  (1842).  or  one  witness  may  tes^^^^^^^  to  ^yhat 
another  witness  so  stated.    Reg.  v.  Hughes,  1  Car.  &  K.  o-O  (1844). 


88  THE    GRAND   JURY.  (Ch.  8 

REGINA  V.  RUSSELL. 

(Central  Criminal  Court,  1S42.     Car.  &  M.  247.) 

The  prisoner  was  indicted  for  feloniously  assaulting Abra- 
ham on  the  31st  of  December,  and  cutting-  and  wounding-  him  on  his 
head,  left  eyebrow,  and  nose,  with  intent  to  do  him  some  grievous 
bodily  harm. 

The  prosecutor  and  several  of  the  witnesses  for  the  prosecution 
were  Lascars,  and  C.  Phillips,  before  the  jury  were  charged,  intimated 
to  the  judges  that  there  was  some  doubt  as  to  whether  those  witnesses 
had  been  properl}^  sworn  to  give  evidence  before  the  grand  jury. 

GuRNEY,  B.,  and  Wightman,  J.,  were  both  of  opinion  that  that 
was  a  matter  which  they  ought  not  to  inquire  into,  and  also  that  the 
mode  of  swearing  the  witnesses  to  go  before  the  grand  jury  would 
not,  if  incorrect,  vitiate  the  indictment,  asz-th^^^^rand  jury  were  at 
liberty  to  find  a  bill  upon  thei^^wn  knnwlpdyf  rnprpiy,  aTrrf-^u/prp  an- 
ciently in  lIi£_habit-e^-TirrKig  so.  And  Wightman,  J.,  added  that  the 
same  point  had  arisen  lately  on  the  Northern  circuit,  before  Lord 
Denman  and  himself,  and  they,  after  considering  the  subject,  were 
of  the  same  opinion  as  had  been  expressed  to-day. 

The  trial  proceeded,  and  the  prosecutor  and  such  witnesses  as  were 
Lascars  having  been  sworn  in  the  manner  which  they  considered  bind- 
ing— 

The  prisoner  was  eventually  convicted  of  an  assault,  and  sentenced 
to  be  imprisoned  for  eight  days.^ 


BOONE  V.  PEOPLE. 

(Supreme  Court  of  Illinois,  1S94.     14S  111.  440,  36  N.  E.  99.) 

Philups,  J.*  The  assignment  of  error  first  alleged  is  in  overrul- 
ing defendant's  motion  to  quash  the  indictment,  which  was  based  on 
the  fact  that  defendant  was  taken  from  the  iail.  and  examined  as  a 
witness  before  the  grand  jury  that  found  the^mSiCtment  against  him, 
and  was  compelled  to__testify  beTore  said  grand  jury  regarding  his 
guilt  gtf--«ttt©ee*ice*^__That  motion  is  supported  by  the  affidavit  of  the 
defendant.  The  grand  fury  constitute  a  part  of  the  court,  and  their 
official  acts  in  finding  true  bills  or  ignoring  bills  are  borne  on  the  rec- 
ords of  the  court,  and  witnesses  sworn  before  that  body  are  sworn  in 
open  court,  though  not  necessarily  in  the  presence  of  the  judge.     1 

3  Accord:  State  v.  Wilcox,  104  N.  C.  847,  10  S.  E.  453  (1889) ;  State  v.  Lee, 
87  Tenn.  114,  9  S.  W.  425  (1888) ;  State  v.  Terry,  30  Mo.  368  (1860) ;  Com- 
monwealth V.  Woodward,  157  Mass.  516,  32  N.  E.  939,  34  Am.  St.  Ren.  302 

(1893). 

*  Part  of  this  case  is  omitted. 


Ch.  8)  THE    GRAND   JURY.  89 

Bish.  Crim.  Proc.  §  8G8.  By  section  10  of  article  2  of  the  Constitu- 
tion of  the  state  of  IlUnois  it  is  declared:  "No  person  shall  be  com- 
pelled in  any  criminal  case  to  give  evidence  against  himself."  When 
the  disqualification  of  a  defendant  in  a  criminal  case,  as  a  witness  in 
his  own  case,  was  removed  by  section  486  of  the  Criminal  Code  of  Ill- 
inois, it  was  expressly  provided  that  "a  defendant  in  any  criminal 
case  or  proceeding  shall  only  at  his  own  request  be  deemed  a  compe- 
tent witness  and  his  neglect  to  testif}'  shall  not  create  any  presumption 
against  him,  nor  shall  the  court  permit  any  reference  or  comment  to 
be  made  to  or  upon  such  neglect." 

Tlie  provision  of  the  statute  and  the  positive  inhibition  of  the  Con- 
stitution alike  preclude  the  right  of  the  grand  jury  or  any  court  to  call 
upon  the  defendant,  and,  in  the  first  place,  to  make  him  a  witness, 
and  require  him  to  give  evidence  against  himself.  It  is  of  the  highest 
degree  of  interest,  and  most  important  to  preserve  that  peculiar  ex- 
cellence of  the  common-law  system  which  has  never  allowed  a  pro- 
ceeding to  establish  guilt  to  be  inquisitorial.  The  affidavits  in  the  rec- 
ord show  that  the  defendant  was  taken  from  the  jail,  where  he  was 
held  in  custody,  and  taken  before  the  grand  jury,  where  he  was  ex- 
amined touching  the  very  matter  on  which  that  grand  jury  found  an 
indictment  against  him,  and  on  which  he  was  placed  on  trial.  A  right 
of  the  highest  character  was  violated.  A  privilege  sacredly  guaranteed 
by  the  Constitution  was  disregarded,  and  a  dangerous  innovation  on 
the  uniform  practice  in  this  state  made;  a  danger  so  great,  if  it  once 
became  a  rule  of  law  that  one  ignorant  of  his  rights,  and  it  may  be 
also  of  his  danger,  unattended  by  counsel  and  unprotected  by  a  court, 
could  be  called  before  a  grand  jury  and  interrogated,  and,  as  he  may 
believe,  compelled  to  answer  to  charges  made  against  him  on  a  sub- 
ject-matter of  investigation  then  before  that  body  in  which  his  inter- 
est is  vital,  that  we  will  not  stop  to  inquire  into  the  question  as  to 
whether  the  indictment  was  found  on  that  testimony  alone,  or  whether 
that  testimony  influenced  the  finding,  where,  as  here,  the  defendant 
is  in  custody  charged  with  a  crime,  and  w'hile  so  in  custody  is  taken 
from  the  jail  to  be  examined  about  that  subject-matter.  It  is  sufficient 
that  so  important  a  right  was  violated,  and  such  a  proceeding  had, 
where  an  indictment  was  found  under  such  circumstances. 

But,  were  that  otherwise,  it  does  not  appear  that  any  other  evidence 
was  heard  before  that  grand  jury  on  which  this  indictment  was  found. 
We  do  not  hold  that  where  one  is  before  the  grand  jury  as  a  witness. 1 
and  at  that  time  is  not  charged  with  crime,  and  may  incidentally  be 
interrogated  about  a  matter  to  which  he  makes  answer,  and  an  indict- 
ment is  afterwards  found  against  him,  that  would  require  the  indict- 
ment to  be  quashed ;  nor  do  we  hold  that  every  case  where  one  is  be- 
fore the  grand  jury  as  a  witness,  and  interrogated  about  a  matter  for 
which  he  afterwards  may  be  indicted,  would  be  of  itself  sufficient  cause 
to  quash  the  indictment.  But  in  this  case  it  does  not  appear  that  the 
grand  jury  examined  any  other  witnesses,  nor  does  it  appear  the  in- 


90  THE   GRAND  JURY.  (Ch,  8 

dictment  was  not  found  on  the  evidence  of  the  defendant  alone.  No 
affidavits  are  filed  by  the  state's  attorney  on  that  question ;  and  where, 
as  here,  the  defendant  charged  with  crime  is  taken  from  the  jail  be- 
fore the  grand  jury,  and  interrogated  about  the  matter  with  which  he 
is  charged  with  crime,  such  an  error  must  be  held  fatal  to  the  indict- 
ment. It  was  error  to  overrule  the  motion  to  quash  the  indictment. 
State  V.  Froiseth,  16  Minn.  296  (Gil.  260).  *  *  * 
Reversed  and  remanded.^ 


STATE  v.  SEABORN. 
(Supreme  Court  of  North  Carolina,  1833.     15  N.  C.  305.) 

RuFFiN,  C.  J.6  *  *  *  Xhe  second  objection  to  the  grand  jury 
is  that  in  the  record  one  Joel  Jones  is  named  as  one  of  the  grand  ju- 
rors sworn,  while  the  list  returned  contained  no  such  person,  but  one 
of  the  name  of  Joes  Jones.  This  differs  from  the  former  objection  in 
this:  That  here  the  facts  which  it  is  alleged  constitute  the  error  do 
appear  in  the  record ;  whereas  the  first  error  was  supposed  to  consist 
in  the  silence  of  the  record  upon  certain  facts.  It  is  insisted  that  the 
grand  jury  must  be  composed  only  of  those  summoned,  and  that  if 
one  be  impaneled  on  it  by  a  different  name  from  all  those  summoned, 
he  must  be  taken  to  be  a  different  person,  and  the  bill  is  not  well  found. 

This  objection,  if  founded  in  fact  and  taken  in  due  season  in  the 
superior  court,  would,  in  my  opinion,  have  been  unanswerable;    and 

5  While  there  must  be  legal  and  competent  evidence  before  the  grand  jury 
to  sustain  an  Indictment  (People  v.  Lauder,  82  Mich.  109,  40  N.  W.  956  [1890]), 
the  authorities  generally  agree  that  an  indictment  is  not  vitiated  merely 
because  the  grand  jury  examined  incompetent  vsdtnesses  (State  v.  Wolcott, 
21  Conn.  272  [1851] ;  State  v.  Dayton,  23  N.  J.  Law,  49,  53  Am.  Dec.  270 
[1850] ;  Bloomer  v.  State,  3  Sneed  [Tenn.]  66  [1855]),  or  considered  improper 
evidence  (Hope  v.  People,  83  N.  Y.  418,  38  Am.  Rep.  460  [1881] ;  State  v. 
Logan,  1  Nev.  509  [1865]).  or  required  a  witness  to  give  improper  evidence, 
e.  g.,  to  testify  against  himself  (People  v.  Lauder,  82  Mich.  109,  46  N.  W.  956 
[1890].  [Contra:  State  v.  Froiseth.  16  Minn.  296,  Gil.  260  [1871]).]  The  suffi- 
ciency of  the  evidence  before  the  grand  jury  will  not  be  inquired  into 
(Stewart  v.  State.  24  Ind.  142  [1805] ;  United  States  v.  Reed,  2  Blatchf.  435, 
Fed.  Cas.  No.  16,134  [1852]),  at  least  if  it  appear  that  there  was  any  legally 
competent  evidence  Ixjfore  them  (Washington  v.  State,  63  Ala.  189  [1879] ; 
State  V.  Logan,  1  Nev.  509  [1865]). 

In  the  absence  of  statutory  provisions,  it  is  no  objection  to  the  validity  of 
an  indictment  that  one  or  more  of  the  grand  jurors,  Avho  were  othei*wise 
qualified,  had  formed  or  expressed  an  opinion  of  the  guilt  of  the  accused  be- 
fore the  finding  of  the  indictment.  Tucker's  Case,  8  Mass.  286  (1811) ;  State 
v.  Chairs,  9  Baxt.  (Tenn.)  196  (1877).  Or  that  one  or  more  of  the  jurors  were 
biased  or  had  an  interest  (not  pecuniary)  in  the  case.  Commonwealth  v. 
Brown,  147  Mass.  585,  18  N.  E.  587,  1  L.  R.  A.  620,  9  Am.  St.  Rep.  736  (1888) ; 
State  V.  Rickey,  10  N.  J.  Law,  83  (1828) ;  Commonwealth  v.  Strother,  1  Va. 
Cas.  186  (1811).  Or  was  of  kin  to  the  accused  or  to  the  prosecutor.  State  v, 
Brainerd,  56  Vt.  532,  4S  Am.  Rep.  818  (1884) ;  State  v.  Russell,  90  Iowa,  569, 
58  N.  W.  915,  28  L.  R.  A.  195  (1894).  The  general  qualifications  for  grand 
jurors  are  very  generally  provided  for  by  statute. 

6  Part  of  this  case  is  omitted. 


Ch.  8)  THE   GRAND  JURY.  91 

had  it  then  been  overruled,  it  would  have  been  error.  But  this  I  am 
saying  as  a  mere  dictum;  for,  admitting-  the  exception  to  have  been 
once  sufificient,  the  question  remains  whether  the  case  was  open  to  it 
when  it  was  actually  taken,  which  is  the  point  of  the  present  decision. 

I  do  not  find  that  it  is  yet  settled  in  England  whether  an  exception 
to  a  grand  juror  can  be  taken  after  verdict,  or  even  after  plea  to  the 
felony.  Perhaps  the  unequivocal  terms  of  St.  11  Hen.  IV,  9,  may 
make  it  imperative  on  the  court  to  receive  it  at  any  time ;  since,  if 
well  founded,  it  avoids  the  indictment  ab  initio  "with  all  the  depend- 
ence thereof,"  which  includes,  as  some  suppose,  the  prisoner's  plea  in 
chief  and  "fhe  verdict."  Yet  others  have  held  that,  although  the  pro- 
ceedings be  void  under  the  statute,  the  matter  of  avoidance  must  be 
brought  before  the  court  at  a  proper  and  at  an  early  stage,  namely, 
before  the  bill  found,  by  challenge,  or  by  special  plea  upon  arraign- 
ment, with  a  plea  over  to  the  felony  either  then  or  upon  the  overruling 
of  the  first  plea.  To  that  eflfect  is  the  great  authority  of  Lord  Coke 
(3  Inst.  33,  34);  and  in  Bacon's  Abridgment,  Juries,  A,  this  is  said  to 
be  the  better  opinion.  But  Serjeant  Hawkins  afterwards  remarks 
(book  2,  c.  25,  §§  23,  26,  27)  that  it  seems  yet  doubtful  how  far  ad- 
vantage can  be  taken  of  the  disqualification  of  a  grand  juror  after 
trial.  Whatever  may  be  the  correctness  of  this  doubt,  it  is  manifest 
that  it  depends  upon  that  statute  and  has  no  other  foundation. 

There  is  nothing  to  ground  it  on  in  this  state.  The  statute  of  Henry 
IV  is  not  in  force  here,  because  we  have  legislated  for  ourselves  upon 
this  subject,  and  have  estabhshed  by  many  acts  a  complete  system  of 
our  own,  inconsistent  in  many  respects  with  that  of  England.  I  do 
not  think  it  necessary  to  recite  our  statutes,  and  content  myself  with 
a  reference  to  them.  They  are  the  acts  of  1779,  c.  137,  of  1806,  c. 
693,  §  11,  and  c.  694,  of  1807,  c.  712,  and  of  1810,  c.  801.  A  perusal 
of  them  must  satisfy  any  mind  that  all  these  statutes  are  directory  in 
their  nature.  There  is  not  an  annulling  clause  or  word  in  any  one  of 
them ;  and  from  many  of  the  provisions  it  must  be  deduced  that  no 
such  consequences  of  an  irregularity  were  intended.  If  we  advert,  for 
instance,  to  the  very  particular  directions  of  St.  1806,  c.  694,  relative 
to  the  forming  of  the  jury  lists  from  the  tax  list,  to  be  furnished  by 
the  clerk  of  the  county  court ;  to  the  writing  the  names  on  scrolls  of 
equal  size ;  to  the  putting  them  in  a  box  having  a  certain  number  of 
divisions,  marks,  locks  and  keys ;  to  the  locking  the  box,  the  custody 
of  the  keys  and  of  the  box ;  and  to  the  drawing  of  the  names  by  a 
child  under  a  certain  age — when,  I  sa}',  we  advert  to  these  provisions, 
and  also  recollect  that  many  of  the  matters  can  by  no  method  get  into 
the  record  of  the  superior  court,  and  that  the  statute  contemplates  that 
no  part  of  them  will  get  there,  by  communication  from  the  county 
court,  except  the  list  of  jurors  to  be  summoned,  that  is,  the  result  of 
all  the  previous  ceremonies,  the  impression  on  the  mind  must  amount 
to  conviction  that  the  enactments  are  merely  directory,  and,  if  so,  that 


92  THE    GRAND   JURY.  (Cb.  8 

Others  upon  the  same  subject  in  the  same  statute,  or  in  another  statute 
in  pari  materia,  partake  of  the  same  character. 

RHt-riTf>-prpvai1ino-  c.orLsiclcration  io-tJie  want  of  any  words  importing 
tha_t  the  proceeding  shall  be  void,  if  the  directions  of  the  acts  be  not 
Upon  this  ground  McEntire's  Case,  4  N.  C.  267, 
id  ruled  that  in  this  state  exceptions  to  grand  jurors 
must  be  taken  at  a  period  analogous  to  that  for  excepting  to  a  petit 
juror;  that  is,  at  the  earliest  point  of  time  the  party  could.  That  to  a 
petit  juror  must  be  by  challenge  when  tendered,  as  has  long  been  set- 
tled at  common  law,  and  was  also  here  under  the  same  act  of  1779  in 
Oldham's  Case,  2  N.  C.  450.  In  strictness,  so  ought  a  grand  juror  to 
be  challenged  before  he  is  sworn.  Thus  it  was  at  common  law,  and 
there  our  acts  still  leave  the  case.  That  was  the  course,  I  recollect,  in 
Burr's  trial;  and  the  case  cited  from  9  Mass.  107,  Commonwealth  v. 
Smith,  rules  that,  upon  a  statute  of  that  state,  similar  to  ours,  no  plea 
of  an  irregularity  in  impaneling  the  grand  jury  could  be  received. 
But  it  seems  to  be  agreed  in  McEntire's  Case  that  the  objection  may 
be  by  plea  upon  the  arraignment ;  and  to  that  I  would  adhere,  as  a 
fair  and  convenient  method.  But  I  think  all  objections  of  the  sort 
are  precluded  by  a  plea  to  the  felony.-    *     *     * 

I  am  therefore  of  opinion  that  both  of  the  objections  taken  in  the 
first  reason  in  arrest  are  insufficient  and  must  be  overruled.     *     *     *  t 

7  Some  courts  hold  that,  if  accused  was  in  a  position  to  object  by  challenge 
either  to  the  array  or  to  a  juror,  his  neglect  to  challenge  on  the  organiza- 
tion of  the  jury  is  a  waiver,  and  he  cannot  afterward  object  by  motion  to 
quash  or  by  plea  in  abatement.  Musick  v.  People.  40  111.  268  (180G) ;  McClary 
V.  State,  75  Ind.  260  (1881) ;  Fisher  v.  State,  93  Ga.  309.  20  S.  E.  329  (1893). 
But  if  he  had  no  opportunity  to  challenge  he  may  plead  in  abatement  any 
matter  which  was  sufiicient  cause  of  challenge.  Pointer  v.  State,  89  Ind.  255 
(1883).  Others  hold  that  the  accused  mav  except  on  arraignment.  State  v. 
Rockafellow,  6  N.  J.  Law,  332  (179G)  ;  Newman  v.  State,  14  Wis.  393  (1861). 
It  is  too  late  after  verdict  (People  v.  Rohtinson,  2  Parker,  Cr.  R.  235  [18551), 
or  after  pleading  in  bar  (State  v.  Carver,  49  Me.  588.  77  Am.  Dec.  275 
[1861] ;  Pointer  v.  State,  89  Ind.  255  [1883] ;  State  v.  Heffernan,  28  R.  I.  477, 
OS  Atl.  364  [1907]),  to  object  to  the  incompetency  of  the  grand  jury. 


Cll.  9)  THE    INDICTMENT.  93 

CHAPTER  IX 
THE  INDICTMENT 


SECTION  1.— FORM  AND   REQUISITES   OF   THE  INDICT- 
MENT IN  GENERAL 


To  indictments  there  are  these  exceptions :  "Sire,  I  crave  an  inspec- 
tion of  the  indictment  vvdiereby  exceptions  may  accrue  to  me,  as  to 
the  person  of  the  indictors  and  to  the  manner  of  the  indictment."  For 
serfs  can  indict  no  one.  Or  if  the  indictment  be  not  made  by  a  com- 
plete dozen  of  free  men,  or  be  made  by  those  who  cannot  indict  any 
one,  or  be  not  sealed  with  the  seal  of  twelve  or  more  jurors  and  put 
on  record  by  a  judge  authorized  thereto,  or  if  the  indictment  make  no 
mention  of  any  particular  deed,  or  be  not  made  within  the  year  and  by 
credible  folk  of  good  fame,  no  one  is  bound  to  answer  it;  nor  if  it  be 
not  made  by  neighbors  of  the  same  county,  nor  if  it  be  in  general 
words,  for  a  general  slander  will  not  defame  any  one  nor  force  him  to 
answer,  as  if  the  indictment  be  that  such  an  one  is  a  homicide,  or  a 
thief,  or  an  evil  doer,  without  saying  what  particular  sin  he  has  com- 
mitted ;  for  to  the  empty  voice  of  the  people  one  must  not  give  hear- 
ing, credence,  or  faith. 

Or  one  may  say  that  since  the  felony  was  committed  there  has  been 
an  eyre  of  the  justices  in  which  nothing  was  alleged  about  it. 

Mirror,  c.  XV,  p.  100. 


I.  The  Caption 

Touching  the   forms  of  indictments,  there  are  two  things  consid- 
erable : 

1.  The  caption  of  the  indictment. 

2.  The  indictment  itself. 

The  caption  of  the  indictment  is  no  part  of  the  indictment  itself, 

but  it  is  the  style  or  preamble,  or  return  that  is  made  from  an  inferior 

court   to    a    superior,    from    whence    a    certiorari    issues    to    remove. 
*     *     * 

1.  The  name  of  the  county  must  be  in  the  margin  of  the  record,  or 
repeated  in  the  body  of  the  caption. 


94  THE   INDICTMENT.  (Ch.  9' 

2.  The  court  where  the  presentment  is  made  must  be  expressed. 

3.  It  must  appear  where  the  session  was  held,  and  that  the  place 
where  it  was  held  is  within  the  extent  of  the  commission.     *     *     * 

4.  The  justices'  names.     *     *     * 

5.  The  title  of  their  authority.     *     *     * 

6.  It  must  return  that  the  indictment  was  made  per  sacramen- 
tum.     *    *     * 

7.  It  must  name  the  jurors  that  presented  the  offense.    *     *    * 

8.  They  must  be  returned  to  be  probi  et  legales  homines,  and  de 
comitatu  prasdicto.     *    *    * 

9.  It  seems  requisite  also  to  add  this  clause,  onerati  et  jurati  ad  in- 
quirendum pro  domino  rege  et  pro  corpore  comit'  prasdict'.     *     *     * 

And  thus  far  for  the  caption  of  the  indictment,  where,  note:  (1) 
That  if  the  caption  be  faulty  in  the  form,  yet  the  same  term  it  may  be 
amended  by  the  clerk  of  the  assizes,  or  the  peace,  but  not  in  another 
term. 

2  Hale,  P.  C.  c.  XXIII. 


PEOPLE  V.  BENNETT. 

(Coiu-t  of  Appeals  of  New  York,  18G7.    37  N.  Y.  117,  93  Am.  Dec.  551.) 

Fuli.e;rton,  J.^  After  the  plea  of  not  guilty  had  been  entered,  and 
the  trial  moved  by  the  district  attorney,  the  counsel  for  the  prisoner 
made  a  motion  to  quash  the  indictment,  because : 

1.  It  did  not  appear,  on  the  face  of  the  indictment,  that  it  was  found 
or  presented  by  a  grand  jury. 

1  Part  of  this  case  is  omitted. 

"In  practice,  iu  England,  appending  the  caption  is  usually  a  ministerial 
act,  and  it  is  introduced  as  a  part  of  the  record,  or  return  from  an  inferior  to 
a  superior  court,  from  which  a  certiorari  issues.  Here  the  caption  is  usually 
drawn  with  the  other  parts  of  the  indictment,  and  is  embodied  in  the  instru- 
ment returned  by  the  grand  jury  as  a  true  bill.  But  we  do  not  think  that  an 
insuperable  objection  to  showing,  by  a  certificate,  filed  in  the  course  of  pro- 
ceedings in  a  particular  case,  under  the  hand  of  the  clerk,  the  actual  time 
of  filing  the  bill.  It  might  be  a  good  reason  why  an  amendment  should  not  be 
made  of  the  caption  in  such  cases.  *  *  *  The  time  of  finding  of  the  bill 
may  be  shown  aliunde,  when  it  becomes  necessary  to  show  that  the  bill  was 
found  at  a  day  subsequent  to  the  commencement  of  the  session  of  the  court." 
Dewey,  J.,  in  Commonwealth  v.  Stone,  3  Gray  (Mass.)  453  (1855). 

"Inasmuch  as  a  prosecution,  in  this  state,  is  never  removed  from  one  to  a 
higher  tribunal,  a  caption  can  be  of  no  benefit  to  an  indictment,  and  is  uni- 
formly dispensed  with."  Voorhies,  J.,  in  State  v.  Marion,  15  La.  Ann.  495 
(1860). 

A  caption  is  only  necessary  where  the  court  acts  under  a  special  commission, 
and  a  mistake  in  the  caption  when  the  court  sits  by  authority  of  public  law 
will  not  vitiate  the  Indictment.     State  v.  Wasden,  4  N.  C.  596  (1817). 

"Following  the  cases  cited  above,  we  feel  it  our  duty  to  regard  the  question 
as  settled  in  this  state,  that  a  caption,  such  as  is  described  in  Reeves  v.  State 
[20  Ala.  33],  supra,  is  an  essential  of  a  good  indictment,  and  when  the  ques- 
tion comes  before  us  on  appeal,  if  the  record  does  not  contain  such  caption, 


Ch.  9)  THE   INDICTMENT.  95 

2.  Because  it  did  not  appear,  on  its  face,  that  it  was  found  and  pre- 
sented by  the  requisite  number  of  grand  jurors. 

3.  Because  it  was  not  alleged,  in  the  indictment,  that  the  grand  jury 
were  charged  and  sworn  by  the  Court  of  Sessions  to  inquire  for  the 
people  of  the  state  of  New  York,  and  for  the  body  of  the  county  of 
Cortland.     *"    *     * 

That  part  of  the  indictment  which  is  complained  of  as  defective  is 

as  follows : 

"Court  of  Sessions,    1  ^     ,,      ,   ,, 
u/^    ^1      1  r>       ^         r  Cortland  County — ss : 
Cortland  County.     J  ■' 

"The  jurors  of  the  people  of  the  state  of  New  York,  in  and  for  the 
body  of  the  county  of  Cortland,  upon  their  oaths  present." 

Then  follow  apt  words  charging  the  defendant  with  the  commis- 
sion of  a  larceny.  Here  are  all  the  requisites  of  a  good  commence- 
ment to  an  indictment.  It  plainly  appears  to  have  been  found  in  the 
Court  of  Sessions  for  the  county  of  Cortland,  and  by  the  jurors  of 
the  people  for  said  county.  It  is  true  that  it  does  not  allege  that  it 
was  found  by  a  grand  jury,  or  by  the  legal  number  of  grand  jurors; 
but  these  are  plainly  implied,  because  that  body,  legally  constituted, 
alone  have  the  power  to  present  any  one  for  trial.  This  has  been  fre- 
quently decided.  McClure  v.  State,  1  Yerg.  (Tenn.)  20G,  per  Ca- 
tron, J. 

The  form  of  this  indictment  is  identical,  mutatis  mutandis,  with  that 
long  since  adopted  in  England,  and  which  has  obtained  in  most  of  the 
states  in  our  own  country.  The  form  used  in  England  nearly  three 
hundred  years  ago  was  "juratores  pro  domina  regina  presentant  quod," 
etc.  West's  Symboleography,  pt.  2,  p.  96.  And  it  has  been  continued 
without  exception  to  the  present  day.  A  great  deal  of  confusion,  how- 
ever, exists  in  the  books,  because  the  distinction  between  the  com- 
mencement and  the  caption  of  an  indictment,  which  has  always  existed 
in  England,  has  not  uniformly  been  maintained  here.  "The  whole 
question  as  to  what  a  caption  should  contain,"  says  Bishop,  in  his  trea- 
tise on  Criminal  Procedure  (section  154),  "appears,  w^hen  approached 
through  the  American  books,  draped  in  mist  and  girded  about  with 
darkness." 

Observing  the  proper  distinction  between  the  caption  and  the  com- 
mencement of  an  indictment,  no  valid  objection  will  be  found  to  the 
one  in  this  case.  The  caption  is  no  part  of  the  indictment.  It  consists 
wholly  of  the  history  of  the  proceedings  when  an  indictment  is  re- 
m.oved  from  an  inferior  to  a  superior  court.  As  I  have  already  stated, 
the  form  of  an  indictment  in  many  of  our  own  states,  and  which  form 
is  derived  from  England,  is  thus:    "The  jurors  of  the  people  of  the 

it  is  fatal  error.  If  it  were  an  open  question  in  this  state,  it  niiiibt  admit  of 
serious  doubt  if  tliis  doctrine  did  not  have  its  origin  in  certiorari  proceedings 
from  courts  of  limited,  inferior  jurisdiction,  and  that  it  should  not  he  applied  to 
records  from  courts  of  general  jurisdiction."  Stone,  J.,  in  Goodloe  v.  State, 
CO  Ala.  93  (1S77). 


96  THE   INDICTMENT.  (Ch.  9 

State  of  ,  in  and  for  the  body  of  the  county  of  ,  upon 

their  oath  present,"  etc.  This  is  the  commencement,  and  all  that  it 
need  contain. 

The  caption  is  quite  a  diiferent  matter,  and  it  had  its  origin  in  this 
way.  Where  an  inferior  court,  in  obedience  to  the  mandate  of  the 
King's  Bench,  transmitted  the  indictment  to  the  crown  office,  it  was 
accompanied  with  its  history,  naming  the  court  where  it  was  found, 
the  jurors'  names  by  whom  found,  and  the  time  and  place  where  found. 
All  this  was  entered  of  record  by  the  clerk  of  the  superior  court  im- 
mediately before  the  indictment,  and  was  called  the  caption ;  but  it 
was  no  part  of  the  indictment  itself.  Bishop  on  Cr.  Pro.  vol.  1,  §§ 
U5,  146;  1  Starkie's  Cr.  PI.  (2d  Ed.)  233.  A  complete  form  of  the 
caption  is  given  in  Hale's  P.  C.  165,  and  in  1  Chitty's  Cr.  Law,  327. 

This  same  practice  prevailed  in  our  state  when  indictments  were 
removed  from  the  Sessions  to  the  Supreme  Court,  as  will  be  seen  in 
the  case  of  People  v.  Guernsey,  3  Johns.  Cas.  266,  quoted  by  the  re- 
spondents. 

It  often  occurred  that  these  captions  were  defective  in  the  state- 
ment of  facts  sufficient  to  show  that  the  inferior  courts  where  they 
were  found  had  jurisdiction.  Then  followed  a  motion  in  arrest  of 
judgment,  and  decisions  as  to  the  requisites  of  a  caption,  viz.,  that  it 
should  contain  an  averment  that  the  indictment,  to  which  it  was  pre- 
fixed, was  found  by  a  grand  jury  of  good  and  lawful  men,  giving  their 
names,  and  that  they  had  been  then  and  there  sworn  and  charged,  etc. 
Vide  Bishop's  Cr.  Pro.  §  155,  vol.  1,  note  1.  The  same  doctrine  is 
aptly  stated  in  Burn's  Justice,  vol.  3,  p.  372,  in  these  words:  "The 
caption  of  the  indictment  is  no  part  of  the  indictment  itself  (2  Hale, 
166),  but  is  the  style  or  preamble  or  return  that  is  made  from  an  in- 
ferior court  to  a  superior,  from  whence  a  certiorari  issues  to  remove, 
or  when  the  whole  record  is  made  up  in  form;  for  the  record  of  the 
indictment,  as  it  stands  upon  the  file  in  the  court  where  it  is  taken,  is 
only  thus:  The  jurors,  for  our  lord,  the  king,  upon  their  oath,  pre- 
sent." 

The  difficulty  in  our  practice  has  grown  out  of  the  error  of  regard- 
ing these  decisions  as  furnishing  a  test  of  what  the  indictment  itself 
should  contain,  rather  than  its  caption,  when  removed  to  a  superior 
court.  The  consequence  is  that,  in  some  of  the  states,  there  have  been 
introduced  into  the  commencement  of  an  indictment  the  averments 
necessary  to  make  a  good  caption,  thus  confounding  the  two.  Bishop's 
Cr.  Pro.  §  149,  note  2.  This  has  led  to  great  diversity  of  practice  and 
necessary  confusion,  and  it  will  be  readily  seen  that  the  decisions  of 
such  states  upon  these  questions  have  no  application  here,  for  the 
English  practice  has  been  adopted  in  our  own  state.  Barb.  Cr.  Trea- 
tise, 280. 

So  far,  therefore,  as  the  objections  in  this  case  go  to  the  form  of 
the  indictment,  the  latter  must  be  considered  good.  Should  an  indict- 
ment be  found  in  an  improper  manner,  or  by  an  insufficient  number 


Ch.  9)  THE   INDICTMENT.  97 

of  jurors,  the  way  is  open  for  redress  by  motion,  which  secures  to  the 
accused  party  immunity  from  an  illegal  trial  or  punishment.  State  v. 
Batchelor,  15  Mo.  207,  208 ;  Reg.  v.  Hearne,  9  Cox,  C.  C.  433,  436 ; 
10  Jurist  (N.  S.)  724;  4  Blackstone,  238;  Bishop's  C.  P.  §  448.  ♦  *   * 


II.  The  Statemknt  of  the  Offense 

The  parts  of  an  indictment  are  many.  2.  The  strictness  required 
in  indictments  is  great,  because  life  is  in  question.  3.  Therefore  very 
nice  and  slender  exceptions  have  been  of  latter  ages  allowed,  and  they 
have  been  with  too  much  facility  quashed  and  reversed.    *    *    * 

An  indictment  is  nothing  else  but  a  plain,  brief,  and  certain  nar- 
rative of  an  offense  committed  by  any  person,  and  of  those  necessary 
circumstances  that  concur  to  ascertain  the  fact  and  its  nature.    *    *    * 

1.  Regularly  every  indictment  oughj^tn  b^  in  t  atiruj'^  all  pleadings 
in  the  courts  ought  to  be,  and  it  is  of  excellent  use,  because,  it  being 
a  fixed,  regular  language,  it  is  not  capable  of  so  many  changes  and 
alterations  as  happen  in  vulgar  languages.     *     *     *  2 

Regularly  false  Latin  doth  not  vitiate  an  indictment,  if  yet  the  in- 
dictment be  reasonably  intelligible,  *  *  *  as  "praefato  Reginae," 
where  it  should  be  "praefatae."  But  if  the  words  be  words  of  art,  and 
by  omission  or  misplacing  of  letters  become  insignificant,  they  vitiate 
the  indictment,  as  "burgariter"  for  "burglariter,"  "feloniter"  for  "felo- 
nice,"  "murdredavit"  for  "murdravit" ;  but  "burgulariter"  hath  been 
held  good.    4  Co.  Rep.  39  b,  Brooks'  Case.    *    *    * 

So  if  it  make  the  indictment  insensible  or  uncertain,  as  if  A.  and 
B.  be  indicted  for  stealing,  "felonice  cepit  et  asportavit,"  where  it 
should  be  "ceperunt,"  it  shall  be  quashed.  P.  42  Eliz.  B.  R.  Lane's 
Case,  Cro.  Eli^.  754 ;  so  in  an  indictment  of  murder,  the  stroke  "in 
sinistro  bracio,"  where  it  ought  to  be  "brachio,"  for  it  appears  not 
where  the  wound  was,  the  words  being  insensible.  T.  31  Eliz.  B.  R. 
Webster's  Case,  Cro.  Eliz.  137. 

Abbreviations  that  are  usual  are  allowable  in  indictments.  *  *  *  3 
Figures  to  express  numbers  are  not  allowable  in  indictments.    *    *    *  * 

2  This  -was  changed  by  St.  4  Geo.  IT.  c.  26,  and  6  Geo.  II,  c.  G.  which  requires 
all  indirtments  to  Ije  in  the  Eni^lish  lanprnase.  The  use  of  Latin,  it  is  believed, 
never  obtained  in  the  United  States.  Bishop,  New  Cr.  Proc.  3342.  See  People 
V.  Ah  Sum,  92  Cal.  648,  28  Pac.  r)80  (1892). 

3  St.  4  Geo.  II,  c.  26.  and  6  Geo.  II,  c.  0.  prohibit  abbreviations  in  indict- 
ments. See  and  cf.  United  States  v.  Reichert  (C.  O.)  32  Fed.  142  (1887); 
CkDmmonwealth  v.  Desmartean.  16  Gray  (Mass.)  1  (1860) ;  State  v.  Jericlio.  40 
Vt.  121.  94  Am.  Dec.  387  (1868) ;  State  v.  Kean.  10  N.  H.  347.  34  Am.  Dec. 
162  (1839).  Where  the  presence  of  abbreviations  renders  the  indictment 
defective,  objection  must  be  taken  before  verdict.  Connnonwealth  v.  Desmar- 
tean, 16  Gray  (Mass.)  1  (1860). 

4  It  is  said  to  be  the  better  practice  to  write  figures  at  length  than  to 
express  them  in  Arabic  characters ;    but  the  employment  of  the  latter  will 

Mik.Cb.Pb.— 7 


98  THE    INDICTMENT.  (Ch.  9 

2.  An  indictment  grounded  upon  an  offense  made  by  act  of  Parlia- 
ment must  by  express  words  bring  the  offense  within  the  substantial 
description  made  in  the  act  of  Parliament,  and  those  circumstances 
mentioned  in  the  statute  to  make  up  the  offense  shall  not  be  supplied 
by  the  general  conclusion  "contra  formam  statuti."  *  *  *  If  a  man 
be  indicted  for  an  offense,  which  was  at  common  law,  and  concludes 
"contra  formam  statuti,"  but  in  truth  it  is  not  brought  by  the  indict- 
ment within  the  statute,  it  shall  be  quashed,  and  the  party  shall  not 
be  put  to  answer  it  as  an  offense  at  common  law. 

2  Hale,  P.  C.  c.  XXIV. 

An  indictment  consists  of  three  parts :  The  commencement,  the 
statement,  and  the  conclusion.  *  *  *  The  commencement  of  every 
indictment  is  thus:  "Middlesex,  to  wit:  The  jurors  for  our  lady  the 
queen  upon  their  oath  present  that."  *  *  *  The  venue  in  the  margin 
should  be  the  county  in  which  the  offense  was  committed;  or,  if  the 
jurisdiction  of  the  court  in  which  the  bill  of  indictment  is  to  be  pre- 
ferred extend  only  to  part  of  the  county,  or  *  *  *  include  more 
than  one  county,  or  be  confined  within  the  limits  of  a  borough,  *  *  * 
the  venue  in  the  margin  should  be  coextensive  with  the  jurisdiction  of 
the  court.  This  is  the  general  rule  of  the  common  law;  but  many 
exceptions  have  been  made  to  it  by  statute. 

Archbold's  Crim.  Plead.  (13th  Ed.)  20. 

The  most  considerable  parts  of  an  indictment  in  capital  offenses  are : 
1.  The  name  and  addition  of  the  party  offending.  2.  The  day  and 
time  of  the  offense  committed.  3.  The  place  where  it  was  commit- 
ted. 4.  Upon  or  against  whom  committed.  5.  The  manner  of  the 
commission  of  it.  6.  The  fact  itself  and  the  nature  of  it.  7.  The  con- 
clusion. 

Regularly  every  indictment  ought  to  conclude  "contra  pacem  domini 
regis."  ^ 

If  an  offense  be  newly  enacted,  or  made  an  offense  of  an  higher  na- 
ture by  act  of  Parliament,  the  indictment  must  conclude  "contra  for- 
mam statuti." 

2  Hale,  P.  C.  c.  XXV. 

If  an  indictment  do  not  conclude  "contra  formam  statuti,"  and  the 
oft'ense  indicted  be  only  prohibited  by  statute,  and  not  by  common 
law,  it  is  wholly  insufficient,  and  no  judgment  at  all  can  be  given  upon 
it.®  But  if  the  oft'ense  were  also  an  off'ense  at  common  law,  I  take  it 
to  be  in  a  great  measure  settled  at  this  day  that  judgment  may  be  given 

not  vitiate  the  indictment.  State  v.  Raiford.  7  Port.  (Ala.)  101  (1S38). 
Where  it  is  held  that  words  must  be  nsed  instead  of  figures,  the  objection  to 
the  use  of  figures  cannot  be  taken  after  verdict.  Commonwealth  v.  Jackson, 
1  Grant  Cas.  (Pa.)  262  (18-55). 

5  See  Anderson  v.  State,  5  Ark.  444  (1843) ;    Reg.  v.  Lane,  6  Mod.  128  (1704). 

6  State  V.  Soule,  20  Me.  19  (1841) ;  People  v.  Enoch,  13  Wend.  (N.  Y.)  159, 
27  Am.  Dec.  197  (1834).  Statutes  in  England  and  in  some  states  have 
abolished  the  necessity  for  the  conclusion.  Castro  v.  Reg.  14  Cox,  C.  C.  54G 
(1881) ;    State  v.  Dorr,  82  Me.  341,  19  Atl.  861  (1890). 


Ch.  9)  THE   INDICTMENT.  99 

as  for  an  offense  at  common  law,  though  the  indictment  conclude  "con- 
tra formam  statuti." 

If  there  be  more  than  one  statute  concerning  the  same  offense,  and 
the  first  of  them  was  never  discontinued,  and  the  latter  only  continue 
the  former  without  making  any  addition  to  it,  or  only  qualify  the  meth- 
od of  proceeding  upon  it,  without  altering  the  substance  of  its  purview, 
it  seems  agreed  that  it  is  safe,  in  an  indictment  upon  any  such  statute, 
to  conclude  "contra  formam  statuti";  and  it  hath  been  holden  that  a. 
conclusion  "contra  formam  statutorum"  will  in  such  cases  vitiate  the 
prosecution.  *  *  *  But  where  a  statute  hath  been  wholly  discon- 
tinued, and  is  afterwards  revived,  there  seem  to  have  been  some  opin- 
ions that  a  prosecution  on  it  ought  to  conclude  "contra  formam  statu- 
torum." 

Also  where  the  same  offense  is  prohibited  by  several  independent 
statutes,  there  are  some  authorities  that  you  must  either  conclude  "con- 
tra formam  statutorum,"  or  "contra  formam"  of  the  particular  stat- 
utes, naming  them,  and  that  if  you  barely  conclude  "contra  formam 
statuti,"  the  indictment  will  be  insufficient,  for  not  showing  on  which 
one  of  the  statutes  it  was  taken.  But  there  are  also  strong  authorities 
for  the  contrary  opinion,  which  is  also  most  agreeable  to  precedents." 

2  Hawkins,  P.  C.  c.  25,  §§  116,  117. 


EVANS  V.  STATE. 

(Court  of  Criminal  Appeals  of  Texas,  1S95.    34  Tex.  Cr.  R.  110.  29  S.  W.  26G.) 

Henderson,  J.^  *  *  *  There  M^s-~a  motion  by  defendant  to 
quash  the  indictment  on  the  ground  that  the  indictment  contained  the 
word  "possion,"  and  not  "possession,"  which  was  overruled  by  the 
court,  and  a  bill  of  exception  saved  by  the  defendant.  The  defendant 
also  objected  to  the  evidence  regarding  the  taking  of  the  clothing,  on 
the  ground  that  there  was  no  proper  allegation  in  the  indictment  char- 
ging that  same  were  in  the  possession  of  Barnard.  The  court  over- 
ruled the  objection,  and  to  this  defendant  reserved  an  exception.  The 
defendant  also  reserved  a  bill  of  exception  to  the  charge  of  the  court 
on  possession,  on  the  ground  that  there  was  no  sufficient  allegation  in 
the  indictment  to  support  such  charge. 

The  sufficiency  of  tiiejvgrd  "po_ssion,".as  used  in  the  indictment,  in- 
stead of  the  word  "goss^s^ian^Lused  in  the  statute  defining  robbery,  is 
thus  presented  for  our  consideration.  We  have  examined  the  dic- 
tionaries, and  nowhere  find  such  a  word  as  "possion,"  nor  do  we  find 
it  used  as  an  abbreviation  for  "possession"  or  any  other  word.  It  is 
not  idem  sonans  with  the  word  "possession,"  nor  can  we  consider  it 

7  See  U.  S.  V.  Gibert,  2  Sumn.  19,  Fed.  Cas.  No.  lo,2(>4  (1834). 

8  Part  of  this  case  is  omitted. 


100  THE   INDICTMENT.  (Ch.  9 

simply  as  an  instance  of  bad  spelling.  Evidently  the  pleader  intend- 
ed to  write  in  the  indictment  the  word  "possession,"  but  with  us  it  is 
not  a  question  of  what  he  means,  but  what  did  he  do;  and  the  word 
"possession,"  in  defining  the  offense  of  robbery,  is  maTerial,  and  we 
cannot  sut»^t3>ulLbv  intendment. 

In  Jones  v.  State,  25  Tex.  App.  621,  8  S.  W.  801,  8  Am.  St.  Rep. 
449,  this  court  at  a  former  term  held  that  in  an  indictment  for  theft 
the  word  "appriate"  was  not  equivalent  to  the  word  "appropriate"  as 
used  in  the  statute  defining  theft,  and  that  its  use  vitiated  the  indict- 
ment. In  State  v.  Williamson,  43  Tex.  502,  referred  to  in  the  above 
cases,  the  very  word  "possion"  used  in  the  indictment  in  this  case 
was  used  in  the  indictment  in  that  case.  The  question  came  up  in  that 
case  on  a  motion  in  arrest  of  judgment.  The  court  in  that  case  seemed 
to  treat  the  word  as  one  of  form,  saying,  "An  objection  of  this  char- 
acter should  be  interposed  before  the  trial,  and  should  not  be  made 
the  ground  of  a  motion  in  arrest  of  judgment;"  and  yet  they  say,  "It 
cannot  be  doubted  that  the  indictment  must  aver  that  the  property 
was  taken  from  the  possession  of  the  owner." 

We  do  not  think  it  can  be  doubted  that  if  an  indictment  for  theft  or 
for  robbery  should  fail  to  properly  allege  the  possession  of  the  prop- 
erty taken  it  is  a  matter  of  substance,  and  of  such  materiality  that  it 
can  be  taken  advantage  of  by  motion  in  arrest  of  judgment,  as  well 
as  by  a  motion  to  quash  the  indictment ;  and  the  only  question  for  us 
to  determine  is,  does  the  use  of  the  word  "possion"  accomplish  this? 
As  before  stated,  the  word  used  is  not  idem  sonans  with  "possession," 
and  it  is  not  an  abbreviation  of  that  word,  and  we  cannot  supply  a 
proper  word  conveying  in  its  meaning  a  material  averment  in  an  in- 
dictment. If  we  were  to  undertake  to  do  so,  we  would  afford  a  bad 
precedent,  when,  by  the  rigid  adherence  to  the  rule,  those  who  draw 
indictments  will  be  encouraged  to  use  more  care  and  diligence,  and 
mistakes  will  thus  be  avoided.    *    *    * 

The  judgment  of  the  lower  court  is  accordingly  reversed  and  re- 
manded.^ 


STATE  v.  COLLY. 

(St.  Louis  Court  of  Appeals,  Missouri,  1897.     69  Mo.  App.  444.) 

Bland,  P.  J.^°  At  the  February  term,  1893,  of  the  Lawrence  coun- 
ty circuit  court,  the  defendant  was  indicted  for  a  violation  of  the  dram- 
shop law.  The  charge  was,  that  he  ^nhLum^  hntf[ervf  "larger"  beer. 
The  case  was  taken  to  the  Barry  county  circuit  court"5y  change  of  ven- 
ue, and  at  the  November,  1895,  term  thereof  he  filed  his  motion  to 

9  Accord:  "Maice"  for  "malice."  Wood  v.  State,  50  Ala.  144  (1873).  "Lar- 
cey"  for  "larceny."  People  v.  St.  Clair,  56  Cal.  406  (1880).  "Farther"  for 
"father."     State  v.  Caspary,  11  Rich.  Law  (S.  C.)  356  (1858). 

10  Part  of  this  case  is  omitted. 


Ch.9) 


THE   INDICTMENT.  ^^^ 


quash  the  indictment,  because  the  indictment  charges  the  se  hng  of 
-lar-er"  beer  (not  "lager"  beer).  This  motion  was  overruled.  A 
triafwas  had  by  the  court  sitting  as  a  jury.  Defendant  was  convicted. 
Motions  in  arrest  and  for  new  trial  were  filed  and  overruled,  bill  of  ex- 
ceptions filed,  and  appeal  taken  to  this  court. 

The  fact  that  the  pleader  used  one  "r"  too  many  in  his  spelling  ot 
the  word  "lager,"  in  the  absence  of  the  fact  that  the  use  of  this  super- 
fluous letter  did  not  construct  another  word  havinga  separate  and  dif- 
ferent ngnifi-^-'^i-"  frnm  tliP  word  'lager."  makcs  it  quite  clear  that 
it  is  a  case  ofmisipdlins.  which  does  not  vitiate  a  pleadmg,  civil  or 
criminal,  wheldTin^this  case,  it  is  a^^i^^FiHTNVhat  word  was  intended 
to  be  used,  and  where  the  word  as  spelled  has  the  same  sound  as  the 
intended  word,  when  correctly  spelled.  The  evidence  supported  the 
finding  of  the  court.    No  instructions  were  asked  or  given. 

We  find  no  error  in  the  record,  and  affirm  the  judgment.    All  con- 


cur. 


STATE  V.  EDWARDS. 
(Supreme  Court  of  Missouri,  1854.     19  Mo.  674.) 

Ryland,  1-  Judge,  delivered  the  opinion  of  the  court.  *  *  *  The 
omission  in  this  indictment  consists  of  the  neglect  to  insert  the  word 
"did"  before  the  words  "assault,  beat  and  maltreat  one  Stephen  L. 
Page,  in  the  peace  then  and  there  being,  and  other  wrongs,"  etc.,  so 
as  to'  make  the  sentence  read  thus :  "With  force  and  violence,^^  in  a 
turbulent  and  violent  manner,  'did'  assault,  beat  and  maltreat,"  etc. 
We  are  inclined  Jo- think  that  ^thtTwOTd  "did"  may,  in  this  indictment, 
be  supplied  by  ijil£iKtee«t. 

In  indictments  for  misdemeanors  merely,  such  intendment  is  often 
resorted  to.  The  strictness  and  rigor  in  the  construction  of  indict- 
ments for  felonies  are  not  applied  uniformly  to  indictments  for  mere 
misdemeanors.  In  the  case  of  State  v.  Haider,  2  McCord  {S.  C.)  377, 
13  Am.  Dec.  738,  the  omission  to  insert  the  word  "did"  before  the 
words  "feloniously  utter  and  publish,  dispose  and  pass"  was  held  fatal, 
and  the  judgment  was  arrested.    This  indictment  was  for  a  felony. 

In  the  case  of  State  v.  Whitney,  15  Vt.  298,  which  was  an  indict- 
ment for  a  misdemeanor,  selling  liquor  by  the  small  measure,  without 
license,  the  word  "did"  was  omitted,  which  should  have  been  joined 
with  the  words  "sell  and  dispose  of."    This  omission  was  held  not  to 

11  Accord-  "Eiset"  for  "eight."  Somerville  v.  State.  G  Tex.  App.  4.33  (1870) 
"Malr"  for  "mare."  State  v.  Myers,  85  Tenn.  203,  5  S.  W.  377  (188G). 
"Assatt"  for  "assault."  State  v.  Crane,  4  Wis.  400  (1S54).  ".Tanury"  foi 
" January."  Hutto  v.  State,  7  Tex.  App.  44  (1879).  "Rill"  for  "kill."  Irvir 
V  State  7  Tex.  App.  109  (1879).  "Frausulently"  for  "fraudulently.  St 
rJouis  V.  State  (Tex.  Cr.  App.)  59  S.  W.  889  (1900).  "Gol"  for  "gold.' 
Grant  v.  State,  ,^5  Ala.  201  (187G). 

12  Part  of  this  case  is  omitted. 


102  THE   INDICTMENT.  (Ch.  9 

be  fatal  on  motion  in  arrest  of  judgment.  Bennett,  J.,  in  delivering  the 
opinion  of  the  court,  said:  "In  this  indictment,  it  is  alleged  that  the 
respondent,  on  the  first  day  of  August,  A.  D.  1842,  at,  etc.,  sell  and  dis- 
pose of,  etc.  It  is  evident  the  omission  is  purely  a  clerical  one.  The 
auxiliary  verb  may  be  supplied  by  intendment." 

There  was  no  necessity  to  supply  this  auxiliary  verb  "did"  before 
one  of  the  verbs  used  in  this  sentence  above  quoted,  viz.,  the  verb 
"beat."  Leaving  out  the  words  "assault  and  maltreat,"  and  using  the 
verb  "beat"  alone,  and  the  charge  is  positive  and  direct.  The  words  in 
the  beginning  of  this  sentence,  "with  intent,"  may  be  rejected  as  sur- 
plusage. They  do  not  injure  the  indictment,  being  no  part  of  the  de- 
scription of  the  offense,  and  may  be  stricken  out,  leaving  the  offense 
full  and  complete.  But  it  is  very  clear  that  the  words  "assault,  beat 
and  maltreat"  express  all  the  action  which  is  imputed  to  the  defend- 
ant, and  no  one  can  misapprehend  their  sense  in  the  connection  in 
which  they  are  used,  and  the  helping  verb  will  at  once  be  supplied 
by  intendment.  In  the  case  of  King  v.  Stevens  &  Agnew,  5  East,  260, 
Lord  Ellenborough  said:  "If  the  sense  be  clear,  nice  exceptions  ought 
not  to  be  regarded."  In  respect  of  this,  Lord  Hale  says  (2  Hale,  P. 
C.  193) :  "More  offenders  escape  by  the  over-easy  ear  given  to  ex- 
ceptions in  indictments  than  by  their  own  innocence,  and  many  heinous 
and  crying  offenses  escape  by  these  unseemly  niceties,  to  the  reproach 
^of  the  law,  to  the  shame  of  the  government,  and  to  the  encouragement 
)f  villainy,  and  the  dishonor  of  God." 

Upon  the  whole,  it  is  the  opinion  of  this  court  that  the  judgment 
below  be  affirmed;  and,  the  other  judges  concurring,  it  is  affirmed  ac- 
>cordingly.^2 


STATE  V.  GILBERT. 

(Supreme  Court  of  Vermout,  1&41.     13  Vt.  647.) 

RedfiEld,  J.^*  The  objection  to  the  use  of  the-Avords.A.nno  Domini, 
in  the  caption  of  the  indictment,  cannot  prevail.  The  abbreviations 
A.  D.,  standing  for  these  same  words,  were  considered  sufficient  in 
an  indictment.  State  v.  Hodgeden,  3  Vt.  481.  A  fortiori,  the  words 
themselves  should  be.  Tli£se__words  havfiJiecome-hterally  English  by 
adoption.  The  same  is  true  of  a  very  considerable  number  of  terms 
iTrthe4anguage.  Most  of  these  adopted  terms  have  changed  their  cos- 
tume, while  others  have  not.  "Phenomenon"  and  "memorandum"  are 
as  strictly  English  as  any  terms  of  the  most  purely  Saxon  derivation. 
Others  are  not  the  less  so  because  they  still  retain  their  foreign  dress ; 

13  See,  also,  State  v.  Raymond,  20  Iowa,  582  (1866) ;  State  v.  Whitney,  15 
Vt.  298  (1813) ;    Ward  v.  State,  8  Blackf.  (Ind.)  101  (1846). 

14  Part   of   this   case   is   omitted. 


Ch.  9)  THE    INDICTMENT.  103 

e.  g.,  pro  tempore,  sine  die,  nemine  contradicente,  bona  fide,  Anno 
Domini,  as  well  as  ennui,  sang  froid,  beaux,  cap-a-pie,  tete-a-tete,  and 
thousands  of  others,  which  are  well  understood  by  mere  English  read- 


ers. 


*       *       *  16 


REX  V.  WHITEHEAD. 

(Court  of  King's  Bench,  1G93.     1  Salk.  371.) 

Mr.  Northey  moved  to  quash  two  indictments,  which  were  quod  cum 
an  order  was  made  that  the  parishioners  should  receive  a  bastard  child ; 
they  in  contempt  did  refuse  to  receive  it.  And  because  it  was  not  posi- 
tively said,  that  it  was  ordered  that  they  should  receive  it,  but  only 
by  recital  with  a  quod  4;uin^__they  were  quashe( 


BURROUGH'S  CASE. 

(Court  of  King's  Bench,  16T6.     1  Vent.  305.) 

He  and  others  were  indicted,  for  that  they  being  churchwardens, 
overseers  of  the  poor,  and  he  a  constable,  did  contemptuously  and 
voluntarily  neglect  to  execute  diversa  praecepta  et  warranta,  directed 
to  them  by  the  bailiffs  of  Ipswich  (being  justices  of  the  peace)  under 
their  hands  and  seals,  etc.  It  was  mov£d4o-t|uash  it,  for  that  the  na- 
ture and  tenor  of  tji^  warrnni-j;  were  not  expressed  in  the  indictment ; 
for  unless  the  parties  Jcaew  paiLiculaily— ivhnt  they -are  charged  with, 
they  cannot  fell  how  fcLjmfik^~iheir-<\eiense. 

And  for  that  reason  it  was  quashed  by  the  court. 


REX  V.  ROBE. 

(Court  of  King's  Bench,  1735.     2  Strange,  000.) 
An  information  was  filgd-  against  him  -fer  several  illegal  exactions 


in  his  office  of  cbfk-^jfthe  market,  and  there  were  several  counts  speci- 
fying sums  taken  of  particular  persons,  upon  all  which  distinct  char- 
ges the  defendant  was  acquitted;  but  at  the  close  of  the  information 
there  was  a  general  charge,  of  which  he  was  found  guilty,  viz.,  that 
under  color  of  his  said  office  he  did  illegally  cause  his  agents  to  de- 
mand and  receive  of  several  other  persons  several  other  sums  of  mon- 
ey, on  pretense  of  weighing  and  examining  their  several  weights  and 

15  See,  also.  State  v.  Hornsby,  8  Rob.  (La.)  554,  41  Am.  Dec.  305  (lSi4). 
Cf.  State  V.  Mitchell,  25  Mo.  420  (18.57). 

10  Cf.  Kex  V.  liyland,  L.  II.  1  C.  C.  99  (1SG7) ;  Rex  v.  Lawley,  2  Str.  904 
(1730). 


104  THE   INDICTMENT.  (Ch.   9 

measures.  Exception  was  taken,  that  this  is  so  general  a  charge,  that 
it  is  impossible  an3L:uumj:iui4Jj_ey3Je  to  defend  himself  on  this  prose- 
cution, or  hav£Jtlie_benefi^^  pleading  it  in  bar  to  any  other ;  and  for 
this  fault  the  judgment  was  arrested. 


III.  The  Conclusion 
REX  V.  CLERK. 

(Court  of  King's  Beuch,  1695.     1  Salk.  370.) 

Indictment  that  twenty  persons  being  assembled,  the  defendant,  not 
being  licensed,  prf^nrli^rl^o  th^m^jiot  r<>nr1ndin£lj;^;^rn  formam  stat- 
uti,  was  quasb£4r--icil--tliey  might  be  the  defendant's  own  family,  to 
which  the  statute  does  not  extend,  and  it  is  not  an  ofifense  at  common 
law.    But  DoLBEN  differed  in  this. 


ANONYMOUS. 
(Court  of  King's  Bench,   1G49.     Style.   ISG.) 

The  court  was  moved  to  quash  an  indictment  against  a  baker  for 

selling  of  bread  under  the  assize.     The  exceptions  were :    1.  That  it 

doth  not  say  what  assize,  whereas  there  be  divers  assizes  of  bread. 
*    *    * 

Roll,  Chief  Justice,  said  to  the  first  exception,  it  is  good  enough  to 
say  he  soldthe  bread  contra  assisam,  althoughJt_sajLnpt  what  assize.^  ^ 


ANONYMOUS. 
(Fpiier  Bench,  1G55.     Style.  449.) 

The  court  was  moved  to  quash  an  indictment  against  one  Peers,  for 
speaking  provoking  language  to  one,  contrary  to  the  late  ordinance 
of  the  Lord  Protector  and  his  council,  upon  these  exceptions ;  *  *  * 
2dly.  It  is  said  by  an  ordinance  of__the  Protector,  made  such  a  day,  and 
doth  not  say  in  thatcase  provided.  And  upon  these  exceptions  it 
was  quashed.^'' 

17  Part  of  this  case  is  omitted. 


Cll,  9)  THE   INDICTMENT.  105 

ANONYMOUS. 

(Court  of  King's  Bench,  1GG2.     1  Vent.  108.) 

An  indictment  for  not  performing  an  order  of  the  justices  of  the 
peace  concerning  a  bastard  child.  It  was  moved  to  quasli  it  because 
it  did  not  conclude  contra  pacem.  But  it  was  held  that  ought  not  to 
be  it  being  but  for  a  non  feasans.^^ 


IV.  Duplicity 

SMITH  et  al.  v.  STATE. 
(Supreme  Court  of  Nebraska,  1S91.     32  Neb.  105,  4S  N.  W.  823.) 

NoRVAi.,  J.2"  On  the  6th  day  of  May,  1889,  the  county  attorney 
filed  in  the  district  court  of  Lancaster  county  an  information  charging 
"that  Moses  Smith  and  W.  Kief,  late  of  the  county  aforesaid,  on  the 
1st  day  of  February,  A.  D.  1889,  in  the  county  of  Lancaster  and  state 
of  Nebraska,  aforesaid,  did  unlawfully  sell,  give  away,  and  vend  spir- 
ituous, vinous,  and  intoxir.at.inp-  liquors  to  Qrin  Snyder,  Frank  Mar- 
tin and  P.  H.  Cooper,  and  to  otherpersons  to  the  county  aTttrmeA-  un- 
known, without  having  hrst  complied  with  the  provisions  of  the  Com- 
piled Statutes  of  the  state  of  Nebraska,  and  without  first  having  taken 
out  a  license  to  sell,  give  away,  and  vend  spirituous,  vinous,  and  intox- 
icating liquors ;  the  said  above  sales  of  spirituous,  vinous,  and  intox- 
icating liquors  by  said  Moses  Smith  and  W.  Kief,  as  aforesaid,  be- 
ing without  authority,  and  contrary  to  the  form  of  the  statutes  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the  state 
of  Nebraska."  The  defendants  moved  the  court  to  quash  the  informa- 
tion.    *     *     * 

The  motion  to  quash  the  information  should  have  been  sustained. 
The  information  is  too  indefinite  and  uncertain.  It  contains  but  one 
count,  and  charges  that  the  defendants  sold  and  gave  away  spirituous, 
vinous,  and  intoxicating  liquors.  It  w^as  held  in  State  v.  Pischel,  16 
Neb.  490,  20  N.  W.  848,  that  the  act  of  selling  any  of  the  liquors  nam- 
ed in  section  11  of  chapter  50  of  the  Compiled  Statutes,  as  well  as  the 
act  of  giving  away  any  of  them,  without  a  license  so  to  do,  is  a  crime. 
We  adhere  to  the  rule  therein  announced.     This  case  is  not  distin- 

10  In  lieu  of  these  technical  words,  the  following:  forms  have  been  held 
Ruftkient:  "Contrary  to  law."  Hudson  v.  State,  1  Blaokf.  (Ind.)  317  (1824). 
[But  see  Commonwealth  v.  Stockbridge,  11  Mass.  279  (1814).]  "Contrary  to 
the  true  intent  and  meaning  of  the  act  of  Congress  of  the  United  States, 
in  such  case  made  and  provided."  U.  S.  v.  Smith,  2  Mason.  143.  Fed.  Cos.  No. 
10.338  (1820).  Contra:  "In  contempt  of  the  laws  of  the  United  States  of 
America."    U.  S.  v.  Andrews,  2  Paine,  451,  Fed.  Cas.  No.  14,455  (1832). 

20  Part  of  this  case  is  omitted. 


106 


THE   INDICTMENT. 


(Ch.  9 


guishable  from  State  v.  Pischel.  As  the  judgment  must  be  reversed 
for  the  error  pointed  out,  it  will  not  be  necessary  to  notice  the  other 
assignments  of  error. 

The  judgmentj^_i:£iiersed,  and  the  cause  remanded  for  further  pro- 
ceedings.   Tfieother  judges  concur. 


STATE  V.  NEWTON. 

(Supreme  Court  of  Vermont,  1S70.     42  Vt.  537.) 

This  was  an  indictment  for  the  larceny  of  a  coat,  one  bracelet,  two 
ear-rings  and  a  breast  pin.     *     *     * 

To  this  indictment  the  respondent  demurred  generally  and  specif- 
ically, assigning  as  cause  of  special  demurrer  that  in  said  indictment, 
containing  but  a  single  count,  the  respondent  was  charged  with  the 
commission  of  two  separate  and  distinct  felonies."^ 

Stdel,  J.  It  is  urged  that  the  indictment  is  open  to  the  objection 
of  duplicity,  because  in  a  single  count  it  charges  the  larceny  of  several 
articles,  some  of  which  were  owned  by  one  person  and  some  by  an- 
other. 

Whether  the  count  isdouble  dependsjon  whether  it  charges  more 
than  one  larrenv. — WTJofharLthere  wasrnnrf>  than  one  larceny  depends 
on  whether  there  was  more  thanjone^ja^tn?;'  and  not  on  the  number 
of  articles  taken^nor  on  their  ownprslTTp-  The  count  alleges  but  one 
taking,  a  single  transaction,  and  is  therefore  not  double.  The  articles 
are  alleged  to  have  been  found  and  taken  at  one  time  and  at  one  place. 
The  indictment  follows  the  form  in  Chit.  Cr.  Law,  959.  The  authori- 
ties upon  this  subject  are  ably  reviewed  by  Mr.  Justice  Sargent  in 
State  v.  Merrill,  44  N.  H.  625,  and  we  concur  in  the  doctrine  of  that 
case.  See,  also.  State  v.  Cameron,  40  Vt.  555.  We  see  no  fault  in 
the  indictment,  either  in  its  description  of  the  place  where  the  offense 
occurred,  or  in  the  form  of  its  conclusion.  The  result  is  a  judgment 
that  the  respondent  take  nothing  by  his  exceptions. ^^ 

21  Part  of  this  case  is  omitted. 

22  Accord:  State  v.  Stevens,  62  Me.  2S4  (1874). 

See,  for  use  of  the  disjunctive  in  the  statement  of  an  offense.  People  v. 
Hood,  6  Cal.  236  (1856) ;    Sims  v.  State,  135  Ala.  61,  33  South.  162  (1902). 

If  the  disjunctive  can  be  construed  to  mean  "to  wit"  (see  State  v.  Gilbert. 
13  Vt.  647  [1841]),  or  if  the  disjunctive  and  what  follows  can  be  rejected  as 
surplusage  (State  v.  Corrigan,  24  Conn.  286  [1855]),  the  disjunctive  allegation 
will  not  render  the  indictment  bad. 


Ch.  9)  THE   INDICTMENT.  107 

COMMONWEALTH  v.  TWITCHELU 

(Supreme  Judicial  Court  of  Massachusetts,  Hampshire,  Fraukliu  aud  Hamp- 
den,   1S49.     4    Cush.    74.) 

MetcalF,  J."  1.  It  is  unnecessary  to  inquire,  in  this  case,  whether 
duphcity  in  an  indictment  is  a  cause  for  arresting  judgment;  because 
we  are  of  opinion  that  the  allegation,  in  this  indictment,  that  the  de- 
fendant "did-set-ucap^  promote"  an  exhibition,  does  not  make  the 
indictment  objectionable  tor  duplicity,  bu^  charges  onlv  oneoffense. 
In  Commonwealth  v.  Eaton,  15  Pick  273,  an  indictnicntTwlTtch  al- 
leged that  the  defendant  "did  unlawfully  uffeijor^ale^nd  did  unlaw- 
fully sell,"  a  lofi^rry-Ticl^elTWas  held  good,  on  demurrer;  and  we  can- 
not distinguish  that  case  from  this.  So  an  indictment,  which  avers 
that  the  defendant  "did  write  and  publish,  and  cause  to  be  written 
and  piibH.shpd,"  a  mabrinrK  liliil.  I.T  not  had  for  dUnllCJlV. — 3-Gabbett, 
Crim.  Law,  234 ;  3  Chit.  Crim.  Law  (4th  Am.  Ed.)  877,  et  seq.    *    *    * 

Exceptions  overruled,-* 


SPROUSE  V.  COMMONWEALTH. 

(Supreme  Court  of  Appeals  of  Virginia,  18SG.     81  Va.  374.) 

Lacy,  J.,  delivered  the  opinion  of  the  court.- ^  *  *  * 
The  first  assignment  of  error  here  is  to  the  ruling  of  the  county 
court  in  refusing  to  quash  the  indictment.  That  the  said  indictment 
is  double  and  presents  a  case  of  duplicity  in  pleading;  that  the  forgery 
of  the  check  was  one  offense,  and  the  forgery  of  the  indorsement  was 
another  offense,  and  that  two  distinct  offenses  were  contained  in  the 
same  count ;  that  the  forgery  of  the  check  alone  was  an  indictable  of- 
fense— citing  Perkins'  Case,  7  Grat.  651,  56  x\m.  Dec.  123;  that  the 
forgery  of  the  indorsement  was  an  indictable  offense — citing  Powell's 
Case,  11  Grat.  822 ;  and  that  the  said  second  count  is  liable  to  the  same 
objection,  and  is  equally  defective. 

Duplicity,  or  double  pleading,  consists  in  alleging,  for  one  single 

23  Part  of  this  case  is  omitted. 

24  See,  also,  Wein  v.  State.  14  Mo.  125  (1851) ;  Wessels  y.  Kansas,  McCahon 
(Kan.)  100  (ISGO) ;    Cobb  v.  State,  45  Ga.  11  (1872). 

"When  one  count  in  an  indictment  charges  two  offenses,  distinct  in  kind 
and  requiring  distinct  ]»nnishnients,  the  olijection  of  duplicitj-  has  been  allow- 
ed in  arrest  of  judgment.  Commonwealth  v.  Symonds,  2  Mass.  163;  State  v. 
Nelson.  8  N.  H.  163 ;  People  v.  Wright.  9  Wend.  (N.  Y.)  193.  But  when  the 
two  offenses  are  precisely  alike,  the  only  reason  against  joining  them  in  one 
count  is  that  it  subjects  the  accused  to  confusion  and  embarrassment  in  his 
defense.  The  objection  is  not  open  after  a  verdict  of  guilty  of  one  offense 
onlv,  but  must  be  taken  by  motion  to  quash,  or  to  compel  the  prosecutor  to 
conline  liiuisolf  to  one  of  the  charges."  Gray,  C.  J.,  in  Commonwealth  v. 
Holmes,  119  Mass.  195  (1875). 

2  0  Part  of  this  case  is  omitted. 


\ 


108  THE   INDICTMENT.  (Ch.  9 

purpose  or  object,  two  or  more  distinct  grounds  of  complaint,  when 
one  of  them  would  be  as  effectual  in  law  as  both,  or  all.  This  is  a 
fault  in  all  pleading,  because  it  produces  useless  prolixity,  and  tends 
to  confusion,  and  to  the  multiplication  of  issues.  This,  however,  is 
only  a  fault  in  form.  The  criminal  law  does  not  permit  the  joinder  of 
two  or  more  offenses  in  one  count. 

We  must  consider  what  are  two  or  more  distinct  offenses  within 
the  rule  just  stated.  It  is  not  an  objection  to  an  indictment  that  a  part 
of  the  allegations  might  be  lopped  off  and  the  indictment  remain  suf- 
ficient ;  and,  although  the  charge  might  be  branched  out  into  two  of- 
fenses, if  the  whole  be  but  parts  of  one  fact  of  endeavor,  all  the  parts 
may  be  stated  together.  Of  this  there  are  familiar  illustrations.  An 
accused  might  be  charged  with  selling  the  different  kinds  of  liquor 
contrary  to  law.  The  sale  of  each  kind  would  be  an  indictable  of- 
fense, yet  an  indictment  setting  forth  a  violation  of  the  law  in  selling 
all  could  not  be  said  to  charge  several  distinct  offenses.  A  man  may  be 
indicted  for  the  battery  of  two  or  more  persons  in  the  same  count,  yet 
the  battery  of  each  was  an  offense ;  yet  they  may  be  charged  together, 
because  they  are  but  parts  of  one  endeavor — the  offense  against  the 
commonwealth  being  the  breach  of  the  peace.  Or  a  libel  upon  two  or 
more  persons,  when  the  publication  is  one  single  act,  may  be  charged 
in  one  count  without  rendering  it  bad  for  duplicity  under  the  rule  stat- 
ed above.  Or  in  robbery,  with  having  assaulted  two  persons,  and  stol- 
en from  one  one  sum  of  money,  and  from  the  other  a  different  sum,  if 
it  was  all  one  transaction.  Or  where  two  make  an  assault,  with  an 
intent  to  kill,  with  different  weapons,  they  may  be  charged  jointly  in 
one  count.  And  if  a  man  shoots  at  two  persons  to  kill  either,  regard- 
less of  which,  he  may  be  convicted  on  a  charge  of  a  joint  assault,  yet 
either  assault  was  an  offense. 

And,  as  was  asked  by  an  English  judge:  "Cannot  the  king  call  a 
man  to  account  for  a  breach  of  the  peace  because  he  broke  two  heads 
instead  of  one?  How  many  informations  have  been  for  libels  upon 
the  king  and  his  ministers?  "    Rex  v.  Benfield,  2  Burrows,  980. 

In  Barnes  v.  State,  20  Conn.  232,  Waite,  J.,  said  upon  this  ques- 
tion :  "No  matters,  however  multifarious,  will  operate  to  make  a  decla- 
ration or  information  double,  provided  that  all  taken  together  con- 
stitute but  one  connected  charge  or  one  transaction."  And  Mr.  Bishop 
says  this  observation  may  be  accepted  as  expressing  the  common  doc- 
trine, when  we  add  to  it  the  words :  "Provided,  alsg^hat  iii,  any  view 
which  the  law  couldt^l^^-crf  the  one  transa£tiQn,_itj2T3y-b'&-i;egarded  as 
constituting  but  one  offense"-^:£iting  the  case  of  Francisco  v.  State, 
21  N.  J.  Law,  30-32,  where  it  was  held  that  a  conviction  on  an  in- 
dictment charging  assault,  battery  and  false  imprisonment  was  not 
bad  for  duplicity,  because,  as  was  said  by  Potts,  Judge :  "The  assault, 
the  battery,  the  false  imprisonment,  though  in  themselves,  separately 
considered,  they  are  distinct  offenses,  yet,  collectively,  they  constitute 
but  one  offense." 


Ch.  9)  THE    INDICTMENT.  109 

Multiplication  of  authority,  or  of  argument,  cannot  be  necessary  on 
this  point,  and  we  will  conclude  this  question  with  a  remark  of  Baron 
Parke,  who  said  to  counsel:  "Your  objection  would  apply  to  every 
case  of  a  burglary  and  a  larceny.  There  would  be,  first,  the  burglary; 
secondly,  the  larceny ;  thirdly,  the  compound  or  simple  larceny ;  fourth- 
ly, the  stealing  in  a  dwelling  house."  When  Tindal,  Chief  Justice,  add- 
ed :  "This  is  one  set  of  faults.  It  is  all  one  transaction.  The  prisoner 
could  not  have  been  embarrassed."  Rex  v.  Bowen,  1  Denison's  Crown 
Cases,  22;  Archbold  Crim.  PI.  (13th  London  Ed.)  p.  5^. 

In  this  case  the  prisoner  was  charged  with  forging  a  check  payable 
to  Gibson,  and  then  forging  Gibson's  name  on  the  back.  This  appears 
to  be  one  transaction,  a  forgery,  looking  to  the  prejudice  of  another's 
right,  a  single  fact  of  one  endeavor;  and,  as  was  said  by  Tindal,  C. 
J.,  supra :  "This  is  one  set  of  facts.  It  is  all  one  transaction.  The 
prisoner  could  not  have  been  embarrassed."  We  think  there  was  no 
defect  in  the  indictment,  and  the  motion  to  quash  was  properly  over- 
ruled.    *     *     * 

Judgment  affirmed.-^ 


\ 


CO^IMONWEALTH  v.  FULLER. 

(Supreme   Judicial  Court  of  Massachusetts,   Norfolk,   1895.     163   jNIass.   499, 

40  N.  E.  764.) 

FiivLD,  C.  J.^'^  This  is  an  indictment  containing  but  one  count,  char- 
ging that  the  defendant,  "on  the  1st  day  of  July,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-four,  at  Medfield,  in  the 
county  of  Norfolk,  aforesaid,  and  on  divers  other  days  and  times  be- 
tween that  day  andtne  5th  day  ot  |un£^n  the  year  of  our  Lord,  1894, 
did  commit  the  crmie  ot  adultery  with  one  Marion  Brown,  by  then 
and  there  navmg  carnal  knowledgS~~Df  the  body  of  the  said  Marion 
Brown,  the  said  Calvin  Fuller  being  then  and  there  a  married  man, 
and  then  and  there  having  a  lawful  wife  alive  other  than  the  said 
Marion  Brown,  and  the  said  Calvin  Fuller  and  Marion  Brown  not 
being  then  and  there  lawfully  married  to  each  other."  The  defendant 
duly  filed  a  motion  to  quash  the  indictir|pnt,  for  thp'^e  rpn.<;nns :  " ( 1) 
Because  the  said  indictment  does  not  set  forth  any  offense  known  to 
the  law  in  any  legal  or  sufficient  manner;  (2)  because  the  said  indict- 
ment is  bad  for  duplicity  in  charging  more  than  one  offense  in  the 
same  count." 

We  think  that  the  indictment  should  be  quashed  for  each  of  the  rea- 
sons alleged.  Adultery  is  not  a  conTimring  oft'ense.  Each  act  of  adul- 
tery constitutes^,  separate  offense.    This  is  not  a  case  where  the  con- 

26  Compare  Reed  v.  State,  88  Ala.  36,  6  South.  840  (1889). 
2T  Part  of  this  case  is  omitted. 


110  THE   INDICTMENT.  (Ch.  9 

tinuance  can  be  rejected  as  surplusage  on  the  ground  that  the  form  of 
the  allegation  is  imperfect  and  insufficient,  because  here  the  allegation 
is  sufficient  in  form.  If  it  is  permissible  to  charge  adultery  with  a 
continuando,  then  the  commonwealth  should  have  been  limited  in  its 
proof  of  substantive  acts  to  the  time  alleged,  and  the  commonwealth 
ultimately  relied  upon  acts  which  occurred  more  than  a  year  before 
any  time  alleged.  The  real  difficulty  in  the  present  case  is  that  the 
defendant  is  charged  in  one  count  with  the  commission  of  many  acts 
of  adultery  with  the  same  person  on  different  days  and  times.  Com. 
V.  Adams,  1  Gray,  481 ;  State  v.  Temple,  38  Vt.  37.  *  *  * 
Exceptions  sustained. 


V.  Repugnancy 

HUME  V.  OGLE. 
(Court  of  Queen's  Bench,  1590.     Cro.  Eliz.  19G.) 

ApfieaLaLXli£..death  of  her  husband.  And  declares,  that  the  defend- 
anffsuch  a  day,  at  West  Lilburne  in  the  said  county,  gave  him  a  mor- 
tal wound,  of  which,  at  Wetwood  in  tlie  said  county,  he  languished, 
and  the  same  day  there  died ;  and  so  the  said  defendant,  the  same  day 
and  year,  at  West  Lilburne  aforesaid,  her  said  husband  modo  et  forma 
prsedict'  murdravit.  And  although  not  guilty  pleaded,  and  issue  joined 
upon  it,  yet  he  waived  it,  and  demurred  upon  the  declaration  (as  it  was 
clearly  held  by  The  Court  he  might).  For  if  the  declaration  be  not 
good,  it  is  in  vain  to  proceed  to  a  trial;  yet  it  was  clearly  held,  that 
it  is  not  peremptory  to  the  defendant;  for  if  it  be  adjudged  against 
him,  it  is  but  a  respondeat  ouster.  And  the  cause  of  the  demurrer  was, 
that  the  death  is  supposed  to  be  at  Wetwood,  and  yet  the  murder  is 
supposed  to  be  at  West  Lilburne,  which  is  contrary,  and  cannot  be ; 
for  although  the  stroke  is  supposed  to  be  at  West  Lilburne,  yet  it  is 
not  felony  till  his  death,  which  was  at  Wetwood,  and  there  the  mur- 
der is  supposed  to  be  done;  and  the  Case  of  Heyden,  4  Co.  41,  was 
cited.  And  as  the  indictment  there  was  insufficient  for  the  time,  so 
here  for  the  place,  which  is  more  material ;  for  from  this  the  venire 
shall  come ;  but  if  it  had  been,  et  sic  murdravit  modo  et  forma  prge- 
dicta,  it  had  been  good.  And  Ive  said,  divers  of  the  ancient  precedents 
are,  that  the  murder  is  supposed  to  be  where  the  stroke  was. — But  The 
Justices  held  clearly,  that  the  indictment  was  ill ;  for  of  necessity  it 
must  be  at  the  place  of  his  death.  And  although  the  precedents  are 
so,  yet  they  did  pass  sub  silentio,  and  were  not  well  examined,  and 
not  to  be  regarded,  as  Heyden's  Case ;  and  it  was  resolved,  that  there 
was  no  difference  between  the  cases;  and  adjudged,  that  the  appeal 
did  abate. 


Ch.  9)  THE   INDICTMENT.  Ill 

STATE  V.  SALES. 

(Supreme  Court  of  Louisiaua,  187S.     30  La.  Ann.  91G.) 

Egan,  J.^*  George  Sales  was  indicted  for  the  murder  of  one  Tay- 
lor. In  the  same  indictment  it  was  also  charged  "that  one  Dan  Proffit, 
one  William  Sales,  and  one  Edward  Ryan,  with  force  and  arms,  did 
feloniously,  willfully,  and  of  their  malice  aforethought  [did]  assist 
and  abet  the  said  George  Sales  in  the  killing  and  murdering  the  said 
William  Taylor  aforesaid,"  etc.  "Therefore  [the  grand  jur}']  do  find 
and  present  the  said  Dan  Proffitt,  William  Sales,  and  Edward  Ryan, 
as  aforesaid,  being  accessory  before  the  fact  of  the  killing  and  murder- 
ing the  aforesaid  William  Taylor."  *     *    * 

As  to  the  second  ground  of  the  motion  in  arrest,  we  think  the  ob- 
jection to  the  indictment  fatal.  The  accused  Proffitt  was  evidently 
intended  to  be  indicted  as  accessory  before  the  fact,  but  the  statement 
in  the  indictment  that  he  did  with  force  and  arms  willfully  and  feloni- 
ously and  with  malice  aforethought  "assist  and  abet"  the  killing  and 
murdering  is  wholly  inconsistent  with  the  charge  of  being  accessory 
either  before  or  after  the  fact,  and  one  so  charged  cannot  be  indicted 
as  accessory.  State  v.  White,  7  La.  Ann.  531 ;  Chitty's  Crim.  Law, 
262,  2G9;  State  v.  Maxent,  10  La.  Ann.  743.  A«.~ac££ssory  before 
the  fact  is  one  who,  being  absent  at  the~~ftrft€_of  the  coirimT^^ion  of 
the  crime  (and  of  course  beings  uiiyWe-4o-i!assist  and  abet"  in  its  com- 
mission), doth  yet  procur-€7XDuns^^or  command  its  commission.  1 
Hale's  Pleas  of  the  Crown,  p.  616. 

The  indictment  is  tht^reforp  Karl  for  thi<^  reason.  and_as  it  attempts 
to  charge  the  accused  as  accessory  before  the  fact  iiiTerms~ttSs  also 
bad  as  an  indictment  against  Proffitt  as  a  prmclpal~  crffender,  as  he 
could  not  be  both  absent  and  present  at  the  same  time,  and  without 
being  present  could  not  be  a  principal  in  the  murder.  Besides,  the 
indictment  contains  but  one  count,  and  even  if  both  crimes  were  con- 
sistent and  otherwise  properly  charged,  it  would  be  bad  for  that  rea- 
son also. 

The  motion  in  arrest  of  judgment  must  prevail.    *    *     *  ^9 


STATE  V.  LOCKWOOD. 

(Supreme  Court  of  Missouri,  Division  No.  2,  1804.    119  Mo.  4G3,  24  S.  W.  101.j.) 

Burgess,  J.^°    At  the  September  term,  1893,  of  the  circuit  court  of 
Henry  county,  an  indictment  was  returned  by  the  grand  jury  of  said 

2  8  Part  of  this  case  is  omittefl. 

2  9  See,  also.  Jones  v.  State.  OS  Ala.  27  (1879). 

80  Part  of  tliis  case  is  omitted. 


112  THE    INDICTMENT.  (Ch.  Q 

county  against  the  defendant,  which,  omitting  the  formal  parts,  is  as 
follows : 

"That  Albert  Lockwood,  on  the  31st  day  of  July,  1893,  at  the  coun- 
ty of  Henry,  and  state  of  Missouri,  in  and  upon  one  Robert  McAllister, 
then  and  there  being,  feloniously,  willfully,  and  with  culpable  negli- 
gence did  make  an  assault,  and  with  a  dangerous  and  deadly  weapon, 
to  wit,  a  pistol,  then  and  there  loaded  with  gunpowder  and  leaden  balls, 
which  he,  the  said  Albert  Lockwood,  then  and  there  in  his  right  hand 
had  and  held  at  and  against  him,  the  said  Robert  McAllister,  did  then 
and  there  feloniously  and  willfully  and  with  culpable  negligence,  shoot 
off  and  discharge,  and  with  the  pistol  aforesaid,  and  the  leaden  balls 
aforesaid,  then  and  there  feloniously,  willfully,  and  with  culpable 
negligence  did  shoot  and  strike  him,  the  said  Robert  McAllister,  in  and 
upon  the  front  part  of  the  head,  and  just  above  the  left  eye,  of  him, 
the  said  Robert  McxA.llister,  giving  him,  the  said  Robert  McAllister, 
then  and  there,  with  the  dangerous  and  deadly  weapon,  to  wit,  the 
pistol  aforesaid,  and  the  gunpowder  and  leaden  balls  aforesaid,  in  and 
upon  the  front  part  of  the  head,  and  just  above  the  left  eye,  of  him, 
the  said  Robert  McAllister,  one  mortal  wound  of  the  breadth  of  one 
inch  and  of  the  depth  of  four  inches,  of  which  said  mortal  wound  the 
said  Robert  McAllister  then  and  there,  on  the  said  31st  day  of  July, 
1893,  at  the  county  aforesaid,  died;  and  so  the  grand  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say  that  the  said  Albert  Lockwood, 
him,  the  said  Robert  McAllister,  in  the  manner  and  by  the  means  afore- 
said, willfully  and  with  culpable  negligence  did  kill  and  murder,  against 
the  peace  and  dignity  of  the  state."  *    *     * 

If  the  IdUing  was  "wijlfnh"  ^'^  rh^ra-eA  in  the  indictment,  then  it 
could  not  have  been  accidental,_£ii__bii---' 'culpable  negligence."  The 
terms  are  inconsistent  as  they  cannot  both  be  true.  If  the  killing  was 
by  "culpable  neglig'ence,"  then  it  was  not  "intentional."  The  word 
"willful"  has  as  much  significance  as  have  the  words  "culpable  neg- 
ligence," and  we  have  the  same  right  to  say  the  latter  are  mere  sur- 
plusage as  we  have  the  right  to  say  the  word  "willful"  is.  The  in- 
dictment y^«^  fVii'nl-  inf;nffirlpnt  in  law,  and  the  court  did  not  err  in  sus- 
taining the  motion  to  quash  it.    Judgment  affirmed.    All  concur. 


STATE  V.  DANDY. 

(Constitutional  Court  of  South  Carolina,  1S04.    1  Brev.  395.) 

This  was  an  indictment  for  a  misdemeanor,  charged  to  have  been 
committed  by  the  defendant  in  compounding  a  felony,  and  was  tried 
before  Trezevant,  J.  The  felony  stated  in  the  indictment  was  for  pass- 
ing a  counterfeit  bank  bill,  which  was  charged  to  have  been  commit- 
ted on  the  5th  day  of  November,  1803.     The  indictment  then  stated 


<3h.  9)  THE   INDICTMENT.  113 

that  "afterwards,  tiJ^v^MmJlie  1st  day  of  June,  1800,"  the  said  felony 
was  compoundii— The  prisoner  was  found  guilty ;  and  now  a  mo- 
tion was  brought  forward  in  this  court  in  arrest  of  judgment. 

Per  Curiam.  The  indictment  is  absurd.  It  is  impossible  that  the 
defendant  could  be  guilty  of  the  offense  as  charged. 

Judgment  arrested. 

STATE  V.  McKENNAN. 
(Constitutional  Court  of  South  Carolina,  1824.     Harp.  302.) 

The  opinion  of  the  court  was  delivered  by  Mr.  Justice  Richard- 
son.^^ . 

The  motion  in  arrest  of  judgment  is  founded  upon  a  supposed  m- 
consistency  appearing  on  the  face  of  the  indictment,  in  stating  that 
the  defendant,  in  July,  1823,  swore  that  he  saw  the  crime  committed 
on  the  10th  October  in  the  same  year,  which  is  inconsistent  and  im- 
possible, because  10th  October,  1823,  had  not  occurred  at  the  time  of 
the  oath  taken.  No  rule  in  pleading  is  clearer  or  more  rational  than 
that  the  indictment  should  set  forth  the  facts  and  circumstances  neces- 
sary to  constitute  the  supposed  crime,  without  inconsistency  or  repug- 
nancy. For  instance,  to  state  that  the  crime  had  been  committed  upon 
a  day  yet  to  come  would  be  repugnant,  and  render  the  count  void^_But 
this  cannot  be  said  of  the  indictment  before  us,  for  it  does  not  state 
that  the  rlpfpndant,  .>\\r£^irinp-  in  lulv.  IS'Zd,  commuted  the  supposed 
perjury  upon  10th  October,  but  that  defendant  committedjhejperjury"" 
in  Tulv  bv  s'Yfp^^Q^  thpt  Keen  nafwione_a  certam  act  oif  10th  Octo- 
ber. For  the  purpose  of  considering  the  question  of  arresf^we  must 
take  the  facts  as  set  forth,  and  if  the  defendant  did  swear  that  Reed 
committed  the  act  in  October,  1823,  however  inconsistent  the  evidence 
may  have  been,  yet  the  indictment  cannot  be  incorrect  in  setting  it 
forth  precisely  as  delivered  in  court  from  the  mouth  of  defendant. 
On  the  contrary,  as  a  general  rule,  the  greater  the  departure  from  such 
a  course,  the  greater  the  danger  of  incorrectness ;  for  though  a  gen- 
eral count  of  the  words  delivered  may  not  be  bad,  yet  an  exact  detail, 
even  when  superfluous,  must  be  better.  In  a  word,  to  describe  the  act 
charged  just  as  it  happened  cannot  be  wrong;  and  if  the  act  consists 
of  supposed  false  words  spoken  on  oath,  the  same  rule  applies,  and 
with  the  same  force,  the  end  in  view  being  a  correct  representation  of 
the  fact    The  argument  used  cannot  prevail.     *     *     *  32 

31  Part  of  this  case  is  omitted. 

3  2  Where  the  repugnant  averments  are  not  material,  and  the  indictment  is 
otherwise  good  without  them,  they  may  be  rejecteti  as  suriilusage.  See  1 
Chit.  Cr.  Law,  173. 

"No  indictment     *     *     *     shall  be  deemed  invalid     *     *     *     for  any  sur- 
plusage or  repugnant  allegation,  when  there  is  sutli.ient  matter  alleged   to 
indicate  the  crime  and  person  cbarged.     *     *     *  "     Rev.  St.  Mo.  §  1S21.     See 
State  V.  Chamberlain,  89  Mo.  120,  1  S.  W.  145  (1S8G). 
MiK.CK.rK.— 8 


114  THE    INDICTMENT.  (Gh.  9 

VI.  Surplusage 
REX  V.  MORRIS. 

(Court  of  King's  Bench,  1774.     1  Leach,  109.) 

Robert  Edwards  was  tried  before  Mr.  Justice  Ashhurst,  at  the  Old 
Bailey,  in  September  session,  1774,  for  robbing  Thomas  Morgan  on 
the  highway  of  a  gold  watch,  chain,  and  seals ;  and  the  same  indict- 
ment charged  "that  Francis  Morris  the  goods  and  chattels  above  men- 
tioned, so  as  aforesaiHTeloniously  stolen,  taken,  and  carried  away,  fe- 
loniously did  receive  and  have ;  he  the  said  Thomas  Morris,  then  and 
there,  well  knowing  the  said  goods  and  chattels  last  mentioned  to  have 
been  feloniously  stolen,  taken,  and  carried  away." 

The  prisoners  were  found  guilty;  but  it  was  moved  in  arrest  of 
judgment  that,  the  indictment  having  alleged  that  Francis  Morris  had 
received  the  property,  and  that  Thomas  Morris  knew  it  to  have  been 
stolen,  the  conviction  could  not  be  supported  as  against  the  accessory, 
for  that  the  fact  of  receiving  and  the  knowledge  of  the  previous  fel- 
ony must  reside  in  the  same  person ;  whereas  the  indictment  charged 
them  in  two  different  persons,  one  of  the  name  of  Francis,  and  the 
other  of  the  name  o-f  Thomas. 

The  point  was  reserved  for  the  opinion  of  The  TweevE  Judges. 
upon  the  following  question :  Whether  the  words.JIthe  said  Thomas 
Morris,"  could  be  rejected  as  surpliT^ntre?  and  thpy  were  unanimous 
that,  as  the  inr1iVfrn^|-)|-  wnnld  Y'  ',' '"  jiii"  nil  j^"'^d  without  these 
words,  they  might  be  struckout_as-s«perabundant  and  unnecessary. 


FULFORD  V.  STATE. 

(Supreme  Court  of  Georgia,  1874.    50  Ga.  591.) 

TrippE,  J.^^  The  indictment  in  this  case  not  only  charged  the  de- 
fendant, as  principal  in  the  second  degree,  in  being  present,  aiding  and 
abetting  the  chief  perpetrator  of  the  alleged  offense,  but  proceeded 

3  3  The  statement  of  facts  is  omitted. 

"The  indictment  is  sufficient  under  the  criminal  procedure  act,  and  the 
motion  to  quash  was  rightfully  refused.  It  does  not  furnish  sutficient  in- 
formation to  enable  the  defendant  to  prepare  his  defense,  and  this  may  often 
occur  where  the  law  declares  an  indictment  good,  'which  charges  the  crime 
substantially  in  the  language  of  the  act  of  assembly  prohibiting  the  crime,  and 
prescribing  the  punishment,  if  any  such  there  be.  or,  if  at  common  law,  so 
plainly  that  the  nature  of  the  offense  may  be  easily  understood  by  the  jury.' 
Prior  to  1860,  when  greater  particularity  was  recpiired  in  setting  out  the 
offense  in  the  indictment,  it  sometimes  failed  to  give  the  defendant  such  notice 
as  he  was  entitled  to,  of  the  specific  matters  which  would  he  attempted  to  be 
proved  against  him  on  the  trial.  Whenever  such  is  the  case,  the  accused 
may  apply  to  the  court  or  judge  for  an  order  that  a  hill  of  particulars  be  filed, 
and  on  the  trial  the  commonwealth  will  be  restricted  to  the  proof  of  the  items 


Ch.  9)  THE    INDICTMENT.  115 

further  and  sppri'frp<4-tlie  ^cts  wli€4:€by.  the  aiding  and  abetting  were 
done.  The  prosecuting-  counsel,  on  motion,  struck  these  descriptive 
averments  from  the  indictment,  over  tho  objection  of  defendant. 

We  recognize  the  rule  that  it  is  not  necessary  to  prove  allegations 
in  an  indictment  which  are  immaterial  or  purely  surplusage.  But  the 
question  is,  what  are  immaterial  averments?  Or,  rather,  when  do 
averments  which  might  have  been  omitted  become  material — or,  at 
least,  so  enter  into  tiie  indictment  as  framed  that  they  cannot  be 
stricken  or  rejected  as  surplusage?  Starkie  on  Evidence,  vol.  3,  p. 
1539,  says  it  is  a  most  general  rule  that  no  allegation,  which  is  descrip- 
tive of  the  identity  of  that  which  is  legally  essential  to  the  claim  or 
charge,  can  ever  be  rejected;  and  on  page  1542,  same  volume,  makes 
it  more  specific  by  restating  the  rule  thus :  "The  position  that  descrip- 
tive averments  cannot  be  rejected  extends  to  all  allegations  which  op- 
erate by  way  of  description  or  limitation  of  that  which  is  material." 
Bishop  says:  "If  the  indictment  sets  out  the  ofit'ense  as  done  in  a  par- 
ticular way,  the  proof  must  show  it  so,  or  there  will  be  a  variance. 
And  where  there  is  a  necessary  allegation  which  cannot  be  rejected^ 
yet  the  pleader  makes  it  unnecessarily  minute  in  the  way  of  descrip- 
tion, the  proof  must  satisfy  the  description  as  well  as  the  main  part,, 
since  the  one  is  essential  to  the  identity  of  the  other."  1  Bishop's  C. 
P.  §§  234,  235.  If  the  proseaitQr-&tate  the-ofifinse  with  unnecessary- 
particularity,  he  will  be  bouiid__by-tkat- statement,  and  must  prove  it 
as  laid.  United  States  v.  Brown,  3  McLean,  233,  Fed.  Cas.  No.  14,- 
OGOrRex  V.  Dawlin,  5  T.  R.  311. 

In  the  case  in  3  McLean,  the  indictment  charged  the  postmaster 
with  stealing  a  letter  containing  certaiii-baak  ftgfes.  It  was  held  that 
the  averment  as  to  the  bank  notes  might  have  been  omitted,  and  an 
offense  was  charged  without  those  words ;  but,  being  in,  they  must 
be  proved.  So  in  United  States  v.  Porter,  3  Day,  283,  Fed.  Cas.  No. 
16,074,  the  charge  was  stopping  the  mail,  with  an  averment  of  a  con- 
tract between  the  Postmaster  General  and  the  carrier.  Though  this 
averment  was  not  necessary  to  the  indictment,  it  Vv'as  adjudged  that  it 
must  be  proved.     In  State  v.  Copp,  15  N.  H.  212,  the  defendant  was 

contained  therein.  Rex  v.  Hodgson,  3  C.  &  P.  422;  Rex  v.  Boot.vinan.  r>  C. 
&  P.  .300:  Connnonwealth  v.  Snellini?,  15  Pick.  (Mass.)  321.  Do«M4ess_iiail 
the  defendant  made  application,  a  bill  of  particulars  would  have  been  ordered. 
In  simplifying  iTrrlt'2]IU£nts,  Tt  wftp  not  the  intendment  to  make  their  brief 
and  compreh«ffiylTeTerms  a  cover  for  snares  to  be  sprung  on  the  accused. 
Whether  a  refusal  to  order  the  bill  would  be  a  subject  of  review  is  a  ques- 
tion not  now  raised."  Trunkey,  J.,  in  Williams  v.  Commonwealth,  91  Pa. 
502  (1S79). 

"The  application  [for  aJuIL-af  particuhiTs]  i^  pnt^  ndiirf^^gg^i  tn  the  discretion 
of  the  court,  n niijTs^^^nfjjfin  therpon,  is  tu>f  subject  to  review."  Brown,  .7..  in 
Dunlop  V.  United  States.  165  U.  S.  491,  17  Sup.  Ct.  376,  41  L.  Ed.  799  (1896). 

"lie  who  has  furnished  a  bill  of  particulars  *  *  *  niust  be  confined 
to  the  particulars  he  has  specified,  as  closely  and  effectually  as  if  they  con- 
stituted essential  allegations  in  a  special  declaration."  Merrick,  J.,  in  Com- 
monwealth V.  Giles,  1  Gray  (.Mass.)  469  (1S54). 


116  THE   INDICTMENT.  (Ch.  9 

indicted  for  resisting  the  sheriff  legally  appointed  and  duly  qualified. 
Although  the  appointment  and  qualification  might  have  been  omitted, 
it  was  held  that  it  was  necessary  to  establish  them  by  testimony. 
Where  the  statute  made  it  penal  to  sell  spirituous  "or"  intoxicating 
liquors,  and  the  charge  was  the.  selling  of  spirituous  "and"  intoxicat- 
ing liquors,  the  prnnrrutnr  wn"  bound  to  show  the  liquor  to  be  both 
spirituous  and  into,xi£ating^  Commonwealth  vT^^agan,  4  Gray  (Mass.) 
18.  See  Commonwealth  v.  "Varny,  10  Cush.  (Mass.)  403;  Common- 
wealth V.  Butcher,  4  Grat.  (Va.)  544;  United  States  v.  Keen,  1  Mc- 
Lean, 429,  Fed.  Cas.  No.  15,510. 

These  decisions  agree  with  the  rule  as  quoted  from  Bishop  and 
Starkie.  The  confusion  that  grows  out  of  applying  it  may  be  avoided 
by  observing  the  qualification  of  it,  or  rather  the  statement  of  another 
rule  given  by  Bishop,  Chitty,  and  Phillips.  Chitty  (1  Criminal  Law, 
294,  295),  says :  "If  any  unnecessary  averments,  disconnected  with  the 
circumstances  which  con otitutfe-tlig^tated"  crime,  be  introduced,  they 
need  not  he"pirovpdj  but  inayljp  rpjertpd  ac;  surplusage,"  See,  also,  1 
Chancery  Pleadings,  263.  Bishop  and  Phillips  state  this  rule  to  be,  if 
the  entire  averment  may  be  omitted  of  which  the  descriptive  matter 
is  a  part,  or  can  be  rejected  as  surplusage,  then  the  descriptive  mat- 
ter falls  with  it  and  need  not  be  proved.  Phillips'  Evidence  (8th  Ed.) 
854 ;  1  Bishop,  Criminal  Proceedings,  §  235.  Or,  as  it  is  put  in  3  Mc- 
Lean, supra,  if  the  averment  be  mere  facts  disconnected  with  the  of- 
fense, they  need  not  be  proved.  See,  also,  on  this  distinction  in  the 
rule.  State  v.  Copp,  15  N.  H.  212. 

These  authorities  show  the  line  between  material  and  immaterial 
averments,  and  where  those  which  might  have  been  omitted,  when 
once  introduced,  become  an  important  part  of  the  indictment,  and  can- 
not be  rejected  as  surplusage  or  stricken  out,  but  must  be  proved. 
And  there  is  reason  and  justice  in  the  distinction.  Take  this  case.  It 
was  not  necessary  that  the  pleader  should  have  stated  the  acts  of  the 
defendant  which  constituted  his  "aiding  and  abetting,"  or  to  define 
how  it  was  done.  The  "aiding  and  abetting"  was  an  essential  aver- 
ment. The  defendant  was  charged  with  so  doing  "by  pushing,  strik- 
ing, assaulting  and  threatening  the  said  J.  A.  Conway."  He  was  put 
on  notice  that  it  would  be  proved  on  him  that  he  did  these  things.  He 
proposes  to  meet  the  charge,  and  to  show  that  he  did  not  push,  strike, 
assault  or  threaten  the  said  Conway.  The  aiding  and  abetting  may 
be  made  out  by  proving  many  other  ways  in  which  it  may  be  done, 
totally  foreign  to  those  set  forth  in  the  indictment.  The  prosecution, 
knowing  this,  proposes  to  strike  out  all  these  descriptive  averments 
and  leave  an  open  field  for  any  and  all  proof  of  any  and  all  forms  or 
w^ays  in  which  the  aiding  and  abetting  may  be  shown.  This  would  be 
permitting  a  defendant  to  be  c^lledupon  to  meet  a  charge^ecifically 
made  in  one  form  andJJi£n_JoJaTTow~lTinT  to  be  convicted  by  a  change 
of  the  indictment  on  proof  of  acts  totally  distinct  from  those  of  which 


Ch.  9)  ' 


THE   INDICTMENT.  HJ 


he  was  notified — IiisJiard_enough  that  a  defendant  may  be  convicted 
on  a  general  averment  of  "al^m^  and  abettm'g/'  witFout  subjecting 
him,  after  specific  acts  are  charged,  to  the  hazard  of  having  them 
stricken  after  he  may  have  prepared  to  meet  them  as  made,  and  to  a 
conviction  for  acts  of  any  kind  that  the  prosecution  may  see  fit  to 
produce.  We  do  not  think  it  can  be  done  on  principle  or  authority. 
Judgment  reversed. 


118  THE    INDICTMENT.  (Ch.  10 

CHAPTER  X 
THE  INDICTMENT-CONTINUED 


SECTION  1.— PARTICULAR  AVERMENTS 

I.  Averment  oe  Facts  and  Circumstances  Neccessary  to  Consti- 
tute THE  Offense 


TATE'S  CASE. 

(Newcastle  Summer  Assizes,  1833.     1  Lew.  234.) 

Prisoners  were  convicted  of  stealing  five  hens.  The  indictment  con- 
tained no  averment  that  they  were  tame. 

Losh,  for  the  prisoners,  took  the  objection,  and  Boeland,  B.,  ar- 
rested the  judgment. 


REX  V.  STRIDE. 

(High  Court  of  Justice,  King's  Bench  Division  [1908]  1  K.  B.  617.) 

Lord  Aeverstone,  C.  J.^  This  case  raises  a  question  of  very  great 
interest  and  importance  with  respect  to  the  averments  which  it  is  nec- 
essary that  an  indictment  should  contain.  Two  persons  were  indicted, 
one  a  keeper  named  Stride,  for  stealing,  and  the  other  a  man  named 
Millard,  for  receiving  a  quantity  of  pheasants'  eggs,  and  the  main 
point  which  has  to  be  decided  is  whether  the  indictment  sufficiently 
avers  that  the  eggs  were  the  subject  of  larceny.     *     *     * 

We  now  come  tothe~rliain  objection,  which  was  taken  to  both  counts 
of  the  indictment.  It  was  contended  that  they  are  bad  in  that  they 
do  not  allege  that  the  pheasants'  eggs  in  question  had  been  reduced 
into  the  possession  of  Sir  Walter  Gilbey  at  the  time  of  the  stealing. 
It  was  not,  indeed,  disputed  by  counsel  for  the  defendants  that  if  a 
keeper  is  employed  by  his  master  to  collect,  either  himself  or  by  the 
underkeepers,  the  wild  pheasants'  eggs,  and  does  collect  them  and  have 
them  in  possession  on  behalf  of  his  master,  those  eggs,  if  subsequently 
stolen,  would  be  the  subject  of  larceny;   but  it  is  said  that  the  indict- 

1  Part  of  this  case  is  omitted. 


Q^    10)  THE    INDICTMENT.  ^^^ 

mcnt  ought  to  contain  some  expression  to  show  that  they  had  been 
collected  from  the  wild  pheasants'  nests.  n-  •     ^ 

The  question  is  whether  the  indictment   as  it  stands  is  sufficient^ 
The  indictment  charges  that^Sixiiie  "one  thousand  phea|gin^l_eggs  ot 
the  goods  and  chattek-iii-and_ofand  belonging  to  Sir  Walter  Gitbey 
felonioushuiid:5iay^-Now  iT^Ttnyself  whether  that  averment  does 
not   wW^ead  fairlv,  involve  the  necessity  of  those  eggs  having  been 
already  collected.    In  the  first  place,  having  regard  to  the  large  quan- 
tity of  eggs  alleged  to  have  been  stolen,  no  one  reading  the  indictment 
could  possibly  think  that  the  charge  related  to  the  taking  of  the  eggs 
when  in  the  nest;  and,  in  the  second  place,  in  addition  to  the  ordinary 
formal  words  "of  the  goods  and  chattels  of,'ija[e^finiihe  words    and 
of  and  hrlnnSn::  tn  "     T^  ^^H'^  ^^'^^^  th^t  the  latter. words  were  sur- 
plusage, ^rBeh5]merelx_ano^  of  saying  the  same  thing  over 
again.     P>u^  T  do'^^Ttake  thaWieW.     I  think  that  the  wor4s    and  of 
and  belonging-to^^-may  fairly  mean  that  the  eggs  "had  been  collected 
by  or  on  behafHrf."    Looking  at  the  indictment  as  a  whole,  I  should, 
apart  from  authority,  be  prepared  to  hold  that  it  sufficiently  charges 
that  the  eggs  had  been  reduced  into  possession  to  satisfy  the  strictest 
rule  of  criminal  pleading. 

It  has  been  argued  that  there  are  authorities  to  the  contrary,     i  he 
principal  of  these  was  Rough's  Case,  2  East,  P.  C.  607,  the  correct- 
ness of  the  report  of  which  I  have  been  able  to  verify  by  reference  to 
the  original  MS.  of  Buller,  J.,  from  which  the  report  is  taken    The 
prisoner  there  was  convicted  of  stealing  "a  pheasant,  value  40s.,  ot 
the  goods  and  chattels  of  H.  S."    There  were  no  additional  words  m 
the  indictment  there.     The  judges  were  all  agreed,  "after  much  de- 
bate and  difference  of  opinion,"  that  the  conviction  was  bad  on  the 
ground  that  "in  cases  of  larceny  of  animals  ferse  naturae  the  indict- 
ment must  show  that  they  were  either  dead,  tame,  or  confined;  other- 
wise they  must  be  presumed  to  be  in  their  original  state ;   and  that  it 
is  not  sufficient  to  add  'of  the  goods  and  chattels'  of  such  an  one^ 
But  that  case  does  not  appear  to  me  to  be  an  authority  in  favor  of  the 
present  defendants.     For  there  was  no  suggestion  on  the  face  of  the 
indictment  that  the  pheasant  was  other  than  a  wild  pheasant.^   It  con- 
tained no  statement  that  it  was  "of  and  belonging  to  H.  S.,"  or  any 
other  words  to  suggest  that  it  had  in  fact  been  reduced  into  possession. 
It  seems  to  me  that  when  you  get  a  state  of  facts  on  the  face  of  the 
indictment,  as  in  the  present  case,  which  is  only  consistent  with  the 
articles    which  are  alleged  to  have  been  stolen,  having  been  reduced 
into  possession,  it  would  be  extremely  artificial  to  say  that  that  natural 
inference  must  be  rejected  because  the  articles  under  certain  other  cir- 
cumstances might  not  be  the  subject  of  larceny.     I  think  that  if  we 
were  to  take  any  other  view  of  the  present  indictment  than  that  which 
we  do  our  decision  would  more  properly  "belong  to  a  time  vvhen, 
as  Lord  Russell  of  Killowen  observed  in  Reg.  v.  Jameson,  [1896J  2 


120  THE    INDICTMENT.  (Ch.  10 

Q.  B.  425,  "the  right  and  justice  and  substance  of  the  thing  were 
sacrificed  to  the  science  of  artificial  statement." 

But  it  was  said  that  the  principle  of  Rough's  Case,  supra,  was  rec- 
ognized in  Reg.  v.  Cox,  1  C.  &  K.  494,  where  an  indictment  for  steal- 
ing "three  eggs"  was  held  by  Tindal,  C.  J.,  to  be  bad  for  not  alleging 
that  they  were  eggs  of  a  kind  that  might  be  the  subject  of  larceny. 
Speaking  for  myself,  I  am  bound  to  say  that,  if  at  the  present  day  a 
person  were  indicted  for  stealing  eggs,  I  should  be  very  slow  to  say 
that  the  indictment  was  insufficient  because  the  eggs  might  conceiva- 
bly have  been  "adders'  eggs  or  some  other  species  of  eggs  which  can- 
not be  the  subject  of  larceny."  Whatever  one  may  think  of  the  de- 
cision in  that  case,  one  cannot  approve  of  the  reason. 

The  next  case  that  was  referred  to  was  Reg.  v.  Gallears,  1  Den.  501. 
There  the  indictment  charged  the  stealing  of  "one  ham,  of  the  value 
of  10s.,  of  the  goods  and  chattels  of  one  G.  H."  It  suggested  that, 
because  a  ham  might  be  the  ham  of  a  wild  animal,  the  indictment  was 
bad.  Patteson,  J.,  said:  "I  do  not  understand  the  objection.  Sup- 
posing it  turned  out  on  proof  to  be  the  ham  of  a  wild  boar,  why  should 
the  prisoner  be  at  liberty  to  take  it  from  the  prosecutor  without  be- 
coming criminally  liable?  The  doctrine  respecting  the  description  of 
animals  in  an  indictment  applies  only  to  live  animals,  not  to  parts  of 
the  carcasses  of  animals  when  dead,  such  as  a  boar's  head."  That 
illustrates  the  principle  which  I  have  endeavored  to  point  out  applies 
to  the  indictment  in  the  present  case,  namely,  that  things  which  are 
prima  facie  not  the  subject  of  larceny  by  reason  of  their  being  ferae 
naturae  are  taken  out  of  that  category  as  soon  as  they  cease  to  be  in 
their  natural  state,  and  that  it  is  sufficient  if  their  artificial  condition 
is  made  to  appear  in  the  indictment.  Pollock,  C.  B.,  in  that  case  went 
further,  and  said  that  he  entertained  a  doubt  as  to  the  correctness  of 
the  ruling  in  Reg.  v.  Cox,  supra. 

Another  case  relied  on  for  the  defendants  was  Tate's  Case,  1  Lewin, 
234.  The  report  is  very  scanty.  All  we  are  told  is  that  the  prisoners 
were  "convicted  of  stealing  five  hens,"  and  that,  as  "the  indictment 
contained  no  averment  that  they  were  tame,  Bolland,  B.,  arrested  judg- 
ment." I  very  much  doubt  whether  that  was  right.  At  all  events,  it 
does  not  go  any  further  than  Rough's  Case. 

Lastly,  we  were  referred  to  Reg.  v.  Lonsdale,  4  F.  &  F.  56,  where 
an  indictment  for  stealing  "three  fowls"  was  objected  to  as  being  am- 
biguous. Pollock,  C.  B.,  said  that,  if  necessary,  he  would  reserve  for 
the  Court  for  Crown  Cases  Reserved  the  question  whether  the  subject 
of  the  ofl^ense  charged  was  sufficiently  stated  to  be  the  subject  of  lar- 
ceny. Those  cases  to  my  mind  do  not  compel  us  to  decide  that  the 
indictment  in  the  present  case  insufficiently  avers  that  the  pheasants' 
eggs  were  so  reduced  into  possession  as  to  be  the  subject  of  larceny. 
The  objection  to  the  indictment  therefore  fails,  and  the  conviction 
must  be  affirmed. 


Ch.  10)  THE    INDICTMENT.  121 

I  desire  to  add  that  I  dissent  from  the  proposition  contended  for  by- 
Mr.  RawHnson  that  the  taking-  of  birds'  eggs  directly  from  the  wild 
nests  amounts  to  larceny.  Whatever  other  offense  such  an  act  may 
involve,  it  cannot,  in  my  opinion,  support  a  charge  of  larceny.* 


PROTECTOR  V.  LOWR. 

(Upper  Bench,   16o4.      Style,   432.) 

Barton  moved  to  quash  an  indictment  preferred  against  Lowr  at 
the  assizes  at  Cornwall,  for  speaking  of  scandalous  words  against  the 
Parliamsut5___The  exception  taken  was,  tfiatit  did  not  appear  in  the 
indictment  that  the  Parliament  was  sitting  at  the  time  when  the  words 
were  spoken.  But  Roll,  Chief  Justice,  answered :  It  appears  not  to 
us  but  that  the  Parliament  was  sitting^at_the  time ;  and  peradventure 
it  will  be  made  appear  at  th"e  trial.  ""Therefore  plead,  and  go  to  trial, 
and  then  move  in  arfest^ot  judgment  if  you  have  anything  to  move. 


REGINA  v.  CLERK. 

(C!ourt  of  King's  Bench,  1702.    1  Salk.  377.) 

A  coroner's  inquisition  finding  that  one  Clerk,  cum  cultro  jugulum 
suum  voluntarie  &  felonice  &  ut  felo  de  se  secuit  &  seipsum  murdravit, 
being  removed  into  this  court,  was  quashed,  for  that,^  1st,  The  wound 
ought  to  be  set  forth,  and  it  ought  to  be  alleged  that  it  was  mortal, 
and  that  the  party  died  of  it;  for  it  is  for  that  very  end  and  reason 
that  the  jury  have  the  view.  Pie  might  cut  his  throat,  and  yet  not  die 
of  it.  And  as  to  the  answer,  that  it  shall  be  intended,  because  it  is  said 
felonice  &  ut  felo  de  se,  it  was  held,  that  inquisitions  must  not  be  taken 
by  intendment  any  more  than  indictments,  because  the  party  is  to  for- 
feit his  goods  and  chattels  by  this  finding;  and  although  the  cut  was 
but  a  maihem,  it  might  be  said  to  be  done  felonice.  Vide  Dy.  68. 
2dly,  The  court  held,  that  such  an  inquisition  would  be  good  without 
the  word  "murdravit,"  and  so  is  Dame  Hale's  Case;  and  that  if  an 
indictment  wants  the  word  "murdravit,"  it  ougkL  not  tp  be  quashed 
for  that  omission,  for  it  is  still  a  good  indictment  for  manslaughter, 
though  not  for  n^iii:4er^f~TF  crept  m  at  first  to  exclude  the  offender 
from  having  clergy,  and  it  contmues  accordingly.     *     *     * 

2  Laurance,  J.,  concurred,  and  Ridley,  Darling,  and  Channell,  JJ.,  delivered 
concurring  opinions  which  are  omitted. 

3  Part  of  this  case  is  omitted. 

*  Contra:  Caldwell  v.  State,  28  Tex.  App.  566,  14  S.  W.  122  (1890) ;  Anderson 
V.  State,  5  Ark.  444  (1&13). 

In  indictments  for  arson,  larceny,  burglary,  and  rape,  the  words  "burned," 
"took,"  "burglariously,"  and  "ravished"  are  necessary,  in  indictments  at  com- 
mon law.     1  Chitty  Cr.  L.  242  et  scq.     In  an  indictment  for  a  felony,   the 


122  THE    INDICTMENT.  (Gh.  10 


STATE  V.  KEERL. 

(Supreme  Court  of  Montana,  1904.     29  Mont.  508,  75  Pac.  3G2.  101  Am.   St. 

Rep.  579.) 

Callaway,  C.^  The  defendant  has  appealed  from  a  judgment  find- 
ing him  guilty  of  murder  in  the  second  degree,  and  from  an  order 
denying  his  motion  for  a  new  trial.  A  number  of  errors  are  assigned. 
*     *     * 

After  alleging  the  infliction  of  certain  mortal  wounds,  the  informa- 
tion continues,  "of  which  said  mortal  wounds  the  said  Thomas  Crystal 
did  then  and  there  languish  and  languishing  did  live,_andjliereafter, 
on  the  21st  day  of  April,  A.  n^inop,,  at  the  mnnty  of  Lewis  and 
Clarke,  in  the  state  of  Montaqa^the  said  Thomas  Crystal  died."  An 
information  must  be  direct  and^erraTrrTcrTegarch  the  party  charged, 
the  offense  charged,  and  the  particular  circumstances  of  the  offense 
charged,  when  they  are  necessary  to  constitute  a  complete  offense. 
Pen.  Code,  §  1834.  It  is  not  permissible  to  convict  the  defendant  upon 
mere  inferences ;  he  must  be  directly,  plainly,  and  specifically  charged 
with  the  commission  of  a  certain  crime,  and  it  must  be  proved  sub- 
stantially as  alleged  in  order  to  convict  him. 

In  order  to  convict  an  accused  of  murder,  the  fact  of  the  killing  by 
him  as  alleged  must  be  proved  beyond  a  reasonable  doubt.  Pen.  Code, 
§  358.  The  fact  that  the  defendant  inflicted  upon  another  human  be- 
ing a  mortal  wound  deliberately,  premeditatedly,  with  malice  afore- 
thought, and  with  the  intent  to  kill  the  victim,  is  not  sufficient  to  sub- 
stantiate a  charge  of  murder.  The  victim  must  die  of  the  mortal 
wound,  and  within  a  year  and  a  day  after  the  stroke  is  received  or  the 
cause  of  death  administered.  Pen.  Code,  §  357.  If  the  victim  die  of 
the  mortal  wound,  but  after  a  year  and  a  day  have  elapsed  since  its 
infliction,  the  defendant  may  not  be  convicted  of  either  murder  or 
manslaughter.  Neither  can  he  be  so  convicted  if,  while  the  victim  is 
languishing  because  of  the  mortal  wound,  death  ensue  from  some 
cause  not  connected  with  or  a  consequence  of  the  wound.  For  these 
reasons  the  information  should  directly  allege  that  death  resulted  from 
the  mortal  wounds  inflicted  by  the  defendant. 

This  view  being  so  clearly  correct  in  principle,  it  would  seem  that 
no  citation  of  authorities  is  necessary,  but  see  Clark  on  Criminal  Pro- 
word  "feloniously"  is  necessary,  as  is  the  word  "treasonably"  in  an  indictment 
for  treason.     See  2  Hawk.  P.  C.  c.  25,  §  55. 

In  some  crimes  the  use  of  certain  technical  words  sufficiently  charges  cer- 
tain elements  of  the  crime.  Thus,  the  word  "ravish"  sutflciently  charges 
force  and  violence,  and  lack  of  consent.  Harman  v.  Commonwealth,  12 
Serg.  &  R.  (Pa.)  69  (1824).  The  word  "adultery"  expresses  carnal  knowledge. 
Helfrich  v.  Common^vvealth,  33  Pa.  68,  75  Am.  Dec.  579  (1859).  And  the  use  of 
the  word  "assault"  makes  it  unnecessary  to  state  the  acts  constituting  the 
assault.  State  v.  Clayton,  100  Mo.  516,  18  S.  W.  819,  18  Am.  St.  Rep.  565 
(1890). 

B  Part  of  this  case  is  omitted. 


Ch.  10)  THE    INDICTMENT.  123 

cedure,  178;  People  v.  Lloyd,  9  Cal.  55;  Commonwealth  v.  Macloon, 
101  Mass.  1,  100  Am.  Dec.  89  ;  State  v.  Sundheimer,  93  Mo.  311,  6 
S.  W.  52 ;  Maxwell's  Criminal  Procedure,  180 ;  Bishop's  New  Crim- 
inal Procedure,  §§  527,  531,  532;  Wharton's  Criminal  Law  (10th  Ed.) 
§  536.  In  Lutz  v.  Commonwealth,  29  Pa.  441,  while  an  indictment 
containing  language  similar  to  the  one  at  bar  was  sustained,  the  court 
say:  ''This  indictment  is  not  artistically  expressed.  Its  grammatical 
construction  is  open  to  criticism,  and  it  trenches  hard  on  those  rules 
of  certainty  which  obtain  in  criminal  pleading." 

The  Attorney  General  relies  on  the  concluding  clause  of  the  infor- 
mation as  supplying  the  defect,  because  it  alleges,  "and  so  the  said 
James  S.  Keerl  did  in  the  manner  and  form  aforesaid  willfully,  unlaw- 
fully, feloniously  and  of  his  deliberately  premeditated  malice  afore- 
thought kill  and  murder  the  said  Thomas  Crystal."  These  words  "are 
the  mere  conclusions  drawn  from  the  preceding  averments.  If  the 
averments  are  bad,  the  conclusion  will  not  aid  them ;  if  they  are  good, 
and  sufficiently  describe  the  crime  as  the  law  requires,  *  *  *  the 
formal  concluding  words  are  immaterial."  Territory  v.  Young,  5 
Mont.  244,  5  Pac.  248 ;  State  v.  Northrup,  13  Mont.  522,  35  Pac.  228. 
We  cannot  give  our  approval  to  this  information. 

As  this  case  must  go  back  for  a  new  trial,  the  information  may  be 
amended  by  leave  of  the  court  to  conform  to  the  views  herein  ex- 
pressed.    *     *     *  ^ 


STATE  V.  CONLEY. 

(Supreme  Judicial  Court  of  Maine,  1854.     39  Me.  78.) 

At  the  March  term,  1854,  the  prisoners  were  tried  before  Shepley, 
C.  J.,  on  an  indictment  as  follows : 

"State  of  Maine. 

"Cumberland,  ss. — At  the  Supreme  Judicial  Court,  begun  and  holden 
at  Portland,  within  and  for  the  county  of  Cumberland,  on  the  first 
Tuesday  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  fifty-four. 

"The  jurors  for  said  state  upon  their  oaths  present  that  Martin 
Conley  and  John  Conley,  of  Portland,  in  the  county  of  Cumberland, 
laborers,  on  the  twelfth  day  of  P'ebruary,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  fifty-four,  at  Portland  in  said  county  of 
Cumberland,  with  force  and  arms,  in  and  upon  one  Thomas  Guiner, 
feloniously,  willfully  and  of  their  malice  aforethought,  did  make  an 
assault,  and  that  they,  the  said  Martin  Conley  and  John  Conley,  then 

«Cf.  Lutz  V,  Commonwealtli,  29  Pa.  441  (1857);  Shay  v.  People,  22  N.  Y. 
317  (18(30). 


124  THE    INDICTMENT.  (Cll.  10 

and  there  with  certain  dangerous  weapons,  to  wit,  certain  wooden 
clubs,  of  the  length  of  four  feet  and  of  the  thickness  of  two  inches, 
which  they,  the  said  Martin  Conley  and  John  Conley,  then  and  there, 
in  both  of  their  hands  had  and  held,  the  said  Thomas  Guiner,  in  and 
upon  the  front  and  upper  part  of  the  head  of  him,  the  said  Thomas 
Guiner,  then  and  there  feloniously,  willfully  and  of  their  malice  afore- 
thought, did  strike  and  beat,  giving  unto  him,  the  said  Thomas  Guiner, 
then  and  there  with  the  said  dangerous  weapons,  to  wit,  with  the  said 
wooden  clubs,  of  the  length  of  four  feet  and  of  the  thickness  of  two 
inches,  two  mortal  wounds,  of  which  said  mortal  wounds  he,  the  said 
Thomas  Guiner,  on  the  twenty-first  day  of  February  now  last  past,  at 
Portland  aforesaid  in  the  county  aforesaid,  did  languish  and  die.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid  do  say,  that  the  said 
Martin  Conley  and  John  Conley,  him,  the  said  Thomas  Guiner,  in 
manner  and  form  aforesaid,  feloniously,  willfully  and  of  their  malice 
aforethought,  did  kill  and  murder,  against  the  peace  of  said  state, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided."    *     *     * 

Tenney,  JJ  *  *  *  The  fifth  cause  for  the  arrest  of  judgment 
is  that  the  indictment  contains  no  allegation  of  the  length,  breadth  or 
depth  of  the  wounds  alleged  to  have  been  caused  by  the  striking  of 
the  prisoners.  When  death  is  occasioned  by  a  wound,  it  should  be 
stated  to  have  been  mortal.  It  must  appear  from  the  indictment  that 
the  wound  given  was  sufficient  to  cause  the  death ;  and  for  this  rea- 
son, unless  it  otherwise  appear,  that  the  length  and  depth  must  be 
shown ;  but  it  is  not  necessary  to  state  the  length,  depth  or  breadth  of 
the  woundr-ii-iLJplTear  that^t-eerrtritrniSLtoIhe  parFv's  death.  Rex  v. 
Mosley,  1  Ry.  &  Moody,  C.  C.  97.  In  the  case  referred  to,  there  were 
several  wounds,  and  it  was  held  by  Abbott,  C.  J.,  Best,  C.  J.,  Alex- 
ander, C.  B.,  Graham,  B.,  Bayley,  J.,  Park,  J.,  Burrow,  J.,  Garrow, 
B.,  Hullock,  B.,  and  Gasalee,  J.,  to  be  unnecessary  to  describe  the 
length,  breadth  or  depth  of  the  wounds.  Holroyd,  J.,  and  Littledale, 
J.,  were  of  a  contrary  opinion. 

In  Rex  v.  Tomlinson,  6  Car.  &  P.  370,  it  is  said  by  Patterson,  J.: 
"My  brother  recollects  the  case  (Rex  v.  Mosley)  perfectly  well,  and  in- 
forms me  that  it  was  very  much  discussed,  and  that  the  ground  of  the 
decision  was  that,  as  common  sense  did  not  require  the  length,  breadth 
and  depth  of  the  wounds  to  be  stated,  it  was  not  necessary  that  they 
should  be  stated ;  that  case  is  therefore  a  direct  authority  against  the 
objection,  and  in  consequence  the  objection  cannot  prevail." 

Another  ground  for  the  arrest  of  the  judgment  is  that  it  is  not  al- 
leged in  the  indictment  that  the  wounds  described  therein,  or  either 
of  them,  were  given,  caused  or  produced  by  the  striking  alleged,  the 
necessary  averment  "by  the  stroke  or  strokes  aforesaid"  being  omitted. 
It  is  averred  in  the  indictment  that  the  prisoners  then  and  there  with 

1  Part  of  this  case  is  omitted. 


Ch.  10)  TUE    INDICTMENT.  125 

the  dangerous  weapons,  etc.,  which  they  then  and  there  in  both  their 
hands,  had  and  held,  the  said  Thomas  Guiner,  in  and  upon  the  front 
and  upper  part  of  the  head,  etc.,  did  strike  and  beat,  giving  unto  him, 
etc.,  then  and  there  with  said  dangerous  weapons,  etc.,  two  mortal 
wounds,  of  which  said  mortal  wounds,  the  said  Thomas  Guiner,  on 
the  21st  day  of  February  aforesaid,  did  languish  and  die.  It  is  not 
easy  to  perceive  in  what  respect  the  allegation  fails  to  be  sufhcient. 
It  is  full,  thatthe  prisoners  struck  and  beat  the  deceased,  giving  unto 
him  two  mortaTwounds  with  the  dangerous  weapons,  "Be tore  described, 
which  they  in  botirthgr  handJIhad  and  held,  of  which  said  mortal 
wounds  the  deceased  died.  It  necessarily  follows,  from  the  facts  al- 
leged in  language  sufficiently  accurate  and  technical,  that  the  strokes 
inflicted  by  the  prisoners  caused  mortal  wounds,  which  produced  the 
death  charged  in  the  indictment. 

The  eighth  objection  to  the  indictment  is  that  it  does  not  contain 
the  allegation  that  the  deceased,  of  the  said  mortal  wounds,  on  and 
from  the  said  twelfth  day  of  February,  etc.,  until  the  twenty-first  of 
the  same  February,  did  suffer  and  languish,  and  languishing  did  live. 
The  prisoner's  counsel,  in  support  of  this  objection,  refer  to  certain 
precedents  of  forms  of  indictment,  without  any  other  authority  that 
this  allegation  is  essential.  It  is  held,  however,  that  the  time  both  of 
the  stroke  and  death  should  be  stated  on  the  record,  the  former  be- 
cause the  escheat  and  forfeiture  of  lands  relate  to  it,  the  latter  in  or- 
der that  it  may  appear  that  the  death  took  place  within  a  year  and  a 
day  after  the  mortal  injury  was  received.  1  Chitty's  Or.  Law,  222; 
3  Ibid.  736.  It  being  alleged  in  the  indictment  now  under  considera- 
tion that  the  deceased  did  languish  and  die  on  the  twenty-first  day  of 
February,  in  the  year  of  our  Lord  1854,  of  the  mortal  wounds  inflicted 
on  the  12th  day  of  the  same  month,  in  full,  precise,  and  technical  lan- 
guage, the  reason  of  the  principle  is  satisfied.  And  no  rule  of  law 
which  can  be  found  being  violated,  the  indictment  is  regarded  sufficient 
in  this  respect.     *     *     * 

Exceptions  and  motion  overruled.* 

8  "An  indictment  of  murder  or  manslangliter  hath  these  certainties  and  req- 
uisites to  be  added  to  it  more  than  other  indictments,  for  it  must  not  be  only 
felouice,  and  ascertain  the  time  of  the  act  done,  but  must  also: 

"(1)  Declare  how,  and  with  what  it  was  done,  namely,  cum  quodam  gladio, 
etc. 

"Yet  if  the  party  were  killed  with  another  weapon,  it  maintains  the  in- 
dictment ;  but  if  it  were  with  another  kind  of  death,  as  poisoning,  or  strang- 
ling, it  doth  not  maintain  the  indictment  upon  evidence.  2  Co.  Inst.  319 ;  Co. 
P.  C.  p.  48. 

"So  if  A.  be  indicted  for  poisoning  of  B.  it  must  allege  the  kind  of  poison, 
but  if  he  poisoned  B.  with  another  kind  of  poisoning,  yet  it  maintains  the  in- 
dictment, for  the  kind  of  death  is  the  same. 

"(2)  He  must  shew  in  what  hand  he  held  his  sword. 

"If  an  indictment  runs  thus,  that  cum  quodam  gladio,  quem  in  dextra  sua 
tenuit,  percussit,  without  saying  in  dextra  manu,  for  this  cause  an  indict- 
ment was  quashed.    P.  44  Eliz.  B.  R.,  Cuppledike's  Case,  3  Coke,  ob. 

"(3)  Regularly  it  ought  to  set  down  the  price  of  the  sword  or  other  weapon, 


126  THE    INDICTMENT.  [Ch.  10 

PEARCE  V.  STATE. 

(Supreme  Court  of  Tennessee,  1853.     1  Sneed,  G3,  60  Am.  Dec.  135.) 

ToTTEN,  ].,  delivered  the  opinion  of  the  court.* 

James  Pearce  was  convicted  in  the  circuit  court  of  Rhea  on  a  pre- 
sentment for  illegal  voting.  He  moved  for  a  new  trial,  and  in  arrest, 
and,  the  motions  being  severally  overruled,  he  appealed  in  error  to 
this  court.     *     *     * 

The  presentment  avers,  in  substance,  that  in  the  election  for  Presi- 
dent and  Vice  President  of  the  United  States,  in  1848,  the  defendant 
unlawfully  and  knowingly  voted  in  the  county  of  Rhea;  he,  the  de- 
fendant, "not  being  a  qualified  voter  in  and  for  said  county  of  Rhea." 

The  act'oTTMi  (chaptcr-g-r,  §  l)~provides~tha^l^  person  vote  at 
any  election  held  under  the  Constitution  and  laws  of  this  state,  "such 
person  not  being  at  the  time  a  qualified  voter  of  the  county  in  which 
he  so  votes,  he  shall  be  adjudged  guilty  of  a  misdemeanor." 

We  think  the  presentment  bad.  The  nature  and  cause  of  the  accu- 
sation are  not  well  stated.  Const,  art.  1,  §  9.  The  presentment  is  in 
the  words  of  the  statute ;  and  the  words  are,  "a  qualified  voter."    That 

or  else  say  nullius  valoi-is,  for  the  weapon  is  a  deodand  forfeited  to  the  king, 
and  the  township  shall  be  charged  for  the  value  if  delivered  to  them. 

"But  this  seems  not  to  be  essential  to  the  indictment. 

"(4)  It  ought  to  show  in  what  part  of  the  body  he  was  wounded,  and  there- 
fore if  it  be  super  brachium,  or  manum.  or  latus.  without  saying  whether 
right  or  left,  it  is  not  good.     Long's  Case,  5  Coke,  121b. 

"So  if  it  be  in  sinistro  bracio,  where  it  should  be  brachio,  it  is  not  good, 
because  insensible.     T.  31  Eliz.  B.  R..  Webster's  Case. 

"So  if  the  wound  be  laid  circiter  pectus,  it  is  not  good.  T.  29  Eliz.,  Clenche's 
Rep.  10.  Super  partes  posteriores  corporis  not  good.  H.  23  Car.  I,  B.  R., 
Savage's  Case,  Style,  76. 

"But  super  faciem,  or  caput,  or  super  dextram  partem  corporis,  or  in  insima 
parte  ventris  are  certain  enough.     Long's  Case,  ,5  Coke,  121b. 

"(5)  Regularly  the  length  and  depth  of  the  wound  is  to  be  shewed,  but  this 
is  not  necessary  in  all  cases,  as,  namely,  where  a  limb  is  cut  off.  Haydon's 
Case,  4  Coke,  42a.  So  it  may  be  also  a  dry  blow,  and  plaga  is  applicable  to 
a  bruise  or  a  wound. 

"But  though  the  manner  and  place  of  the  hurt  and  its  nature  be  requisite, 
as  to  the  formality  of  the  indictment,  and  it  is  fit  to  be  done,  as  near  the  truth 
as  may  be,  yet  if  upon  evidence  it  appear  to  be  another  kind  of  wound  in 
another  place,  if  the  party  died  of  it,  it  is  sufficient  to  maintain  the  indict- 
ment. 

"(6)  It  is  usual  to  allege  the  party  stricken  to  have  been  in  pace  Dei  et 
domini  regis,  but  not  necessary  to  be  inserted.     Haydon's  Case,  4  Coke,  411)." 

2  Hale,  P.  C.  185,  186. 

Statutes  have  been  very  generally  adopted  making  it  unnecessai-y  to  set 
forth  the  means  employed  in  causing  the  death.  See  Catchcart  v.  Common- 
wealth, 37  Pa.  108  (1860). 

"The  fourth  exception  was  because  the  depth  and  breadth  of  the  wound 
was  not  shown,  as  is  always  usual  in  indictments,  so  that  it  may  appear  to 
the  court  that  the  wound  was  mortal.  But  it  was  answered  and  resolved  by 
the  court  that  it  could  not  be  in  this  case,  because  all  the  pan  of  the  knee 
was  entirely  cut  off ;  as  if  an  arm  or  leg  is  cut  off,  or  if  a  man  is  beheaded, 
the  depth  or  breadth  of  the  wound  shall  not  be  shown."  Haydon's  Case,  4 
Coke,  41  (1585). 

0  Fart  of  this  case  is  omitted. 


Ch.  10) 


THE    INDICTMENT. 


127 


is  not  a  fact,  but  a  legal  result;  and  for  the  facts  which  constitute  a 
qualified  voter  we  are  to  refer  to  the  Constitution  and  laws,  from 
which  it  will  be  seen  that  there  are  several  grounds  of  disqualification : 
(1)  If  he  be  not  a  free  white  man,  twenty-one  years  of  age.  (3)  If 
he  be  not  a  citizen.  (3)  If  he  has  not  resided  in  the  county  six  months 
as  a  citizen  thereof. 

Now,  for  which  of  these  muses  w;js  tlie  defendant  disqualified?  The 
presentment  does  not  mforp-'  1t""\  and  tlie  cause  can  only  appear  in 
the  proof,  wdien  he  may  be  taken  by  surprise,  and  be  wholly  unpre- 
pared to  make  his  defense^ however  just  and  valid  it  may  be. 

The  rule  is  that  "the  indictment  must  charge  the  crime  with  cer- 
tainty and  precision,  and  must  contain  a  complete  description  of  such 
facts  and  circumstances  as  will  constitute  the  crime.  A  statement  of 
a  legal  result  is  bad."  1  Chit.  Cr.  L.  228.  A  conclusion  of  law  need 
not  be  stated.  It  is  the  facts  upon  which  it  is  founded  that  are  neces- 
sary and  material.    1  Chit.  Cr.  L.  231. 

We  may  further  observe  that  wdiere  the  act  is  not,  in  itself,  neces- 
sarily unlawful,  but  becomes  so  by  other  facts  connected  with  it,  the 
facts  in  which  the  illegality  consists  must  be  set  forth  and  averred. 
1  Chit.  Cr.  L.  229. 

Now,  the  act  of  voting  is  not  necessarily  illegal,  but  may  become  so 
for  some  of  the  causes  before  stated ;  and,  in  order  that  the  charge 
may  be  perfect,  such  cause  must  be  set  forth  and  averred  in  the  indict- 
ment or  presentment.  The  ground  of  disqualifration  not  being  averred 
in  the  present  case,  the  judgmelTrwiTrbe  reverspd^  nnd  the  motion  in 
arrest  sustained- 
Judgment  reversed. 


STATE  v.  HADDONFIELD  &  C.  TURNPIKE  CO. 
(Supreme  Court  of  New  Jersey,  1900.    65  X.  J.  Law,  97,  46  Atl.  700.) 

Case  certified  from  court  of  oyer  and  terminer,  Camden  county. 

The  Haddonfield  &  Camden  Turnpike  Company  was  indicted  for 
neglecting  to  keep  its  road  in  repair,  and  demurred  to  the  indictment. 
Case  certified,  and  court  advised  that  defendant  was  entitled  to  judg- 
ment on  its  demurrer. 

Gum  MERE,  J.  The  defendant  is  indicted  for  neglecting  to  keep  its 
turnpike  road  in  repair.  The  groimd-tti-deuiurrer  is  that  the  indict- 
ment fails  to  show  liow  the  defendant's  obligation  to  keep  its  road  in 
repair  arises^  ""*  ' 

The  pleading  demurred  to,  after  alleging  that  the  defendant  is  in 
possession  of  the  turnpike,  and  that  the  same  is  out  of  repair,  charges 
that  the  defendant  is  "by  law  holden  and  bound  the  said  turnpike  road 
to  repair  and  amend,"  etc.  The  rule  with  relation  to  the  necessity  of 
setting  forth  in  an  indictment  how  the  duty  arose  for  the  neglect  to 
perform  which  the  defendant  is  presented  is  thus  stated  in  State  v. 


128 


THE    INDICTMENT. 


(Ch.  10 


Hageman,  13  N.  J.  Law,  311 :  "Where  an  offense  consists  in  an  omis- 
sion to  do  some  act,  the  indictment  must  show  how  the  defendant's 
obligation  to  perform  that  act  arises,  unless  it  is  a  duty  connected  by 
law  to  the  office  which  the  defendant  sustains."  To  the  same  effect  is 
State  V.  President,  etc.  of  New  Jersey  Turnpike  Co.,  16  N.  J.  Law, 
223. 

It  is  contended  on  behalf  of  the  state  that  the  legal  duty  of  the  de- 
fendant to  repair  and  amend  its  turnpike  is  created  by  its  charter,  and 
that,  as  the  charter  is  a  law  of  the  state,  the  allegation  of  the  indict- 
ment is  sufficient,  the  case  being  within  the  exception  mentioned  in 
State  V.  Hageman.  This  contention  would  be  sound  if  the  charter  of 
the  company  was  a  public  act,  provided  it  casts  upon  the  company  the 
duty  of  repair.  But  tl>r-HwTtpr  i'^i  ri  p'-'vntf  n'-f,  nrd  we  cannot  take 
judicial  notice  of  its  contents.  1  Chit.  PI.  21G.  The  indictment  should 
have  set  (JOTtlie  charter~prT5vision,  from  which  the  duty  of  the  defend- 
ant to  repair  and  amend  its  road  is  claimed  to  arise,  and  is  fatally  de- 
fective in  not  doing  so. 

The  Camden  oyer  and  terminer  is  advised  that  the  defendant  is  en- 
titled to  judgment  on  its  demurrer. 


HARMAN  v.  JACOB. 

(Upper  Bench,   1651.     Style,  256.) 

In  an  arrest  of  judgment  upon  a  verdict  given  against  an  alien  in  an 
indictment  upon  the  statute  of  22  H.  VIII,  c.  13,  for  using  a  trade, 
exception  was  first  taken.  *  *  *  2(Jly.  The  indictment  doth  not 
say  that  he  4s  alieriatus  extra  Ansfliam 
ception.^° 


And  this  was  held  a  good  ex- 


REX  V. 


(Court  of  King's  Bench,  1819.    1  Chitty,  698.) 

Piatt  moved  to  quash  the  indictment  in  this  case,  or  for  a  rule  to 
show  cause  why  the  prosecutor  should  not  deliver  to  the  defendant  a 
bill  of  particulars  of  divers  goods  referred  to  in  the  indictment.  As 
to  the  first  part  of  his  motion,  he  submitted  that  the  indictment  was 
bad  for  the  uncertainty  and  generality  of  its  allegations.  It  was  an 
indi«^nTCi»k.^r  a  conspiracy  "to  defraud  John  Wheatlc}'  of  divers 
goods,  and  in  pursuance  of  that  Luii^^iracy  deff^iding  him  of  divers 
goods,  to  wit,  of  tho  Maine  ofjone  hundred  poundsr" — This-^llegation, 
he  contended,  was  too  uncertain,  for  tne  mdictment  should  have  par- 
ticularized the  specific  goods  of  which  the  prosecutor  was  supposed  to 


10  Part  of  this  case  is  omitted. 


Ch.  10)  THE    INDICTMENT.  129 

have  been  defrauded.  If  this  was  an  indictment  for  felony  in  steal- 
ing the  goods  of  Wheatley,  it  was  clear  this  allegation  would  not  do, 
because  the  indictment  could  not  set  out  the  goods  in  the  general  way. 
By  analogy  to  the  rule  in  cases  of  felony,  he  submitted  that,  in  such 
an  indictment  as  this,  the  goods  should  be  particularized  for  the  in- 
formation of  the  defendant,  who  in  this  case  had  been  a  servant  of  the 
prosecutor  for  twelve  months,  during  which  time  he  had  transacted 
sales  for  his  employer  in  two  hundred  different  instances,  amounting 
in  all  to  the  value  of  £25,000.  It  was  of  the  utmost  importance  there- 
fore to  this  defendant,  that  he  should  be  apprised  of  the  particulars 
of  the  alleged  fraud,  in  order  that  he  might  be  enabled  to  meet  the 
charge,  and  prove  his  innocence.  As  to  the  second  part  of  the  motion, 
he  admitted  that  it  was  unprecedented,  but  he  submitted,  supposing 
the  indictment  to  be  good,  that  the  court  would  in  such  a  case  and  un- 
der such  circumstances  call  upon  the  prosecutor  to  deliver  a  particular 
of  the  transaction  to  which  he  meant  to  apply  his  evidence. 

BaylEy,  J.^^  This  case  is  not  analogous  to  an  indictment  for  felony 
in  stealing  goods,  because  the  conspiracy  is  the  gravamen  of  the  pres- 
ent indictment.  The  conspijacv  mn,y  i-'^  to  rlffr^'H  the  prosecutor, 
not  of  any  particular  f^ond^,  but  -"f  m)^  goods  he  can  g-et  hold  of ;  and 
it  is  not  often  in  the  power  of  3  prrmprnt-nr  t^  sp^rifv  the-pinrtimbr 
goods  of  which  he-4^a^-be€a.j^efrauded,  because  the  object  of  the  con- 
spiracy may  itself  Jofi-uttcextainr^Vith  respe£t_tQ_the_application  for 
a  bill  of  particulars,  it  isjp.n'te  new.^_^nd  I  think  we  cannot  now  make 
a  precedent,  without  very  seriotw-eensideration, 

HoLROYD,  J.,  was  of  the  same  opinion.  =. 

Rule  refused.  V^ 


COMMONWEALTH  v.  HERSEY. 

(Supreme  Judicial  Court  of  Massachusetts,  18G1.     2  Allen.  173.) 

Indictment  for  murder. 

BiGELOW,  C.  J.^-  The  motion  m  arrest  of  judgment  in  the  present 
case  is  founded  on  the  omission  to  av^r  that  the  defendant,  in  adminis- 
tering poison  to  the  deceased,  did  it^  with  an  mtent  tcr^kill  and  murder. 


There  can  be  no  doubt  that,  in  every  case,  to  render  a  party  respon- 
sible for  a  felony,  a  vicious  will  or  wicked  intent  must  concur  with  a 
wrongful  act.  But  it  does  not  follow  that,  because  a  man  cannot  com- 
mit a  felony  unless  he  has  an  evil  or  malicious  mind  or  will,  it  is  neces- 
sary to  aver  the  guilty  intent  as  a  substantive  part  of  the  crime  in  giv- 
ing a  technical  description  of  it  in  the  indictment.     On  the  contrary, 

11  The  opinion  of  Abbott,  C.  J.,  is  omitted. 

12  Tart  of  this  case  is  omitted. 

Mik.Cb.Pk.— 9 


130  THE    INDICTMENT.  (Ch.  10 

as  the  law  presumes  that  every  man  intends  the  natural  and  necessary 
consequences  of  his  acts,  it  is  sufficient  to  aver  in  apt  and  technical 
words  that  a  defendant  committed  a  criminal  act,  without  alleging  the 
specific  intent  with  which  it  was  done.  In  such  case,  the  act  neces- 
sarily includes  the  intent.  Thus,  in  charging  the  crime  of  burglary, 
it  is  not  necessary  to  aver  that  the  breaking  and  entering  a  house  was 
done  with  an  intent  to  steal.  It  is  sufficient  to  charge  the  breaking 
and  entering  and  an  actual  theft  by  the  defendant.  Tfee-teasoais^that 
the  fact  of  stealing  is  the  strongest  possible  eyidenrp  nf  th?  inti^nt  and 
the  aWeg&mrrotinE^eEj^-^^^^^^^  ^"  averment  of  that  intent. 
Commonwealth  v.  Hope,  22  Pick.  1,  5 ;  2  East,  P.  C.  c.  15,  §  24. 

SolrTafrmdictment  for  murder  by  blows  or  stabs  with  a  deadly 
weapon,  it  is  never  necessary  to  allege  that  they  were  inflicted  with 
an  intent  to  kill  or  murder.  The  law  infers  the  intent  from  proof  that 
the  acts  were  committed,  and  that  death  ensued.  The  averment,  there- 
fore, of  the  criminal  act  comprehends  the  evil  or  wicked  intention  with 
which  it  was  committed.  The  true  distinction  seems  to  be  this :  When 
by  the  commonjaw  or  by  t^p  p^'ovifiir)"  '^^m  ^^-^t.^fn  a  portiViiT??^itvJ^pn- 
tion  is  essential  to  in  nffen^P;  or  ti  rriminnl  nrt  i^intt^mpterl  but  not 
accomplished,  and  the  evil  intent  only  rai-)  be^punisheclTtt-is^Jiecessary 
to  allege  thp  intpnt  witVi  (^ktinri-npQg  and  prccision,  and  to  support  the 
allegation  by  proof.  On  the  other  hand,  if  the  offense  does  not  rest 
merely  in  tendency,  or  in  an  attempt  to  do  a  certain  act  with  a  wicked 
purpose,  but  consists  in  doing  an  unlawful  or  criminal  act,  the  evil  in- 
tention will  be  presumed  and  need  not  be  alleged,  or,  if  alleged,  it  is 
a  mere  formal  averment,  which  need  not  be  proved.  In  such  case, 
the  intent  is  nothing  more  than  the  result  which  the  law  draws  from 
the  act,  and  requires  no  proof  beyond  that  which  the  act  itself  sup- 
pHes.  1  Stark.  Crim.  PL  165;  1  Chit.  Crim.  Law,  233;  King  v. 
Philipps,  6  East,  474 ;  1  Hale,  P.  C.  455 ;  Commonwealth  v.  Merrill, 
14  Gray,  415,  77  Am.  Dec.  336. 

To  illustrate  the  application  of  the  rule,  take  the  case  of  an  indict- 
ment for  an  assault  with  an  intent  to  commit  a  rape.  The  act  not  be- 
ing consummated,  the  gist  of  the  offense  consists  in  the  intent  with 
which  the  assault  was  committed.  It  must  therefore  be  distinctly  al- 
leged and  proved.  But  in  an  indictment  for  the  crime  of  rape  no  such 
averment  is  necessary.  It  is  sufficient  to  allege  the  assault,  and  that 
the  defendant  had  carnal  knowledge  of  a  woman  by  force  and  against 
her  will.  The  averment  of  the  act  includes  the  intent,  and  proof  of 
the  commission  of  the  offense  draws  with  it  the  necessary  inference  of 
the  criminal  intent.  The  same  is  true  of  indictments  for  assault  with 
intent  to  kill,  and  murder.  In  the  former,  the  intent  must  be  alleged 
and  proved.  In  the  latter,  it  is  only  necessary  to  allege  and  prove  the 
act. 

The  application  of  this  principle  to  the  case  at  bar  is  decisive  of  the 
question  raised  by  the  present  motion.  There  is  nothing  in  the  nature 
of  the  crime  of  murder  by  poison  to  distinguish  it  from  homicide  by 


Ch.  10)  THE    IXDICTMEXT.  131 

Other  unlawful  means  or  instruments,  so  as  to  render  it  necessary  that 
it  should  be  set  out  with  fuller  averments  concerning  the  intention 
with  which  the  criminal  act  was  committed.  If  a  person  administers 
to  another  that  which  he  knows  to  be  a  deadly  poison,  and  death  en- 
sues therefrom,  the  averment  of  these  facts  in  technical  form  neces- 
sarily involves  and  includes  the  intent  to  take  life.  It  is-^he  natural 
and  necessary  consequence  of  the  act  done,  from  which  the  law  infers 
that  the  party  knew  and  contemplated  the  result  which  followed,  and 
that  it  was  committed  with  the  guilty  intention  to  take  life. 

It  was  urged  by  the  counsel  for  the  prisoner,  as  an  argument  in 
support  of  the  insufficiency  of  the  indictment,  that  every  fact  stated  in 
the  indictment  might  have  been  done  by  the  defendant,  and  yet  he 
might  have  committed  no  offense;  that  is,  that  a  person  might  admin- 
ister to  another  that  which  he  knew  to  be  a  deadly  poison,  from  which 
death  ensued,  innocently  and  without  any  intent  to  do  bodily  harm. 
In  a  certain  sense  this  is  true.  A  physician,  for  example,  might  in  the 
exercise  of  due  care  and  skill  give  to  his  patient  a  medicine  of  a  poison- 
ous nature,  in  the  honest  belief  that  it  would  cure  or  mitigate  disease, 
but  which  from  unforeseen  and  unexpected  causes  actually  causes 
death.  And  the  same  is  true  of  many  other  cases  of  homicide  produced 
by  other  means  than  poison.  Take  the  case  of  a  murder  alleged  to  have 
been  committed  by  stabs  or  cuts  with  a  knife.  Such  wounds  may  be 
inflicted  innocently  and  for  a  lawful  purpose.  A  surgeon  in  perform- 
ing a  delicate  and  difficult  operation,  by  a  slight  deflection  of  the  knife, 
which  the  most  cautious  skill  could  not  prevent,  might  inflict  a  wound 
which  destroys  life.  But  it  has  never  been  deemed  necessary,  because 
certain  acts  which  cause  death  may  be  done  without  any  wicked  or 
criminal  intent,  to  aver  in  indictments  for  homicide  that  the  person 
charged  acted  with  an  intent  to  take  life.  The  corrupt  and  wicked  pur- 
pose with  which  a  homicidal  act  is  done  is  sufficiently  expressed  by  the 
averment  that  it  was  committed  willfully  and  with  malice  afore- 
thought ;  and  this  allegation  may  be  always  disproved  by  showing  that 
the  act  happened  per  infortuniam,  or  was  otherwise  excusable  or  justi- 
fiable. 

Motion  in  arrest  of  judgment  overruled. 


COMMONWEALTH  v.  BOYNTON. 

(Supreme  Judicial  Court  of  Massachusetts,  Essex,  1853.    12  Cush.  499.) 

Indictment  upon  Rev.  St.  c.  131,  §  1,  charging  that  the  defendant 
"did  knowingly  cp]]  ^i-ntr,  r^ne^  Jeremiah  Barker  a-rgT^jgin  piece  of  dis- 
eased, corrupted,  ^a^n-l  iiinisJin]p.5omp  prnvisiniTjjto  wit^_one  hind  leg  of 
veal,  the  said  Bp^^FrtorTnot  then  and  there  making  known  fully  to  said 
Barker  that  the  same  was  diseased,  corrupted,  and  unwholesome,"  etc. 
After  conviction  in  the  court  of  common  pleas,  the  defendant  moved 


182  THE    INDICTMENT.  (Ch.  10 

in  arrest  of  judgment  for  insufficiency  of  the  indictment,  which  motion 
being  overruled,  he  appealed  to  this  court. 

BiGELOW,  J.  The  motion  in  arrest  of  judgment  in  this  case  rests 
mainly  on  the  omission  to  aver  in  the  indictment  a  knowledge  by  the 
defendant,  at  the  time  of  the  alleged  sale,  that  the  meat  sold  by  him 
was  diseased  and  corrupted.  There  can  be  no  doubt  that  the  gist  of 
the  offense,  under  Rev.  St.  c.  131,  §  1,  upon  which  this  indictment 
is  founded,  consists  in  the  guilty  knowledge  or  evil  intent  of  a  party 
in  selling  meat,  which  he  knows  to  be  unfit  for  food.  This  is  neces- 
sarily implied  by  the  language  of  the  statute,  which  imposes  a  penalty 
upon  any  person  who  shall  knowingly  sell  unwholesome  provisions 
"without  making  the  same  fully  known  to  the  buyer." 

Such  being  the  nature  of  the  offense  charged  upon  the  defendant, 
he  has  a  right  to  insist  that  it  should  be  formally  and  substantially 
described ;  that  is,  set  out  in  the  indictment  with  technical  precision 
and  accuracy,  according  to  the  rules  of  the  common  law.  Common- 
wealth V.  Davis,  11  Pick.  432,  438;  Commonwealth  v.  Phillips,  16 
Pick.  211,  213.  It  is  a  familiar  rule  of  criminal  pleading  that,  wher- 
ever the  intention  of  a  party  is  necessary  to  constitute  an  offense,  such 
intent  must  be  alleged  in  every  material  part  of  the  description  where 
it  so  constitutes  it ;  thus,  where  a  forged  order  was  presented  and 
money  obtained  thereby,  and  the  indictment  alleged  that  the  defendant, 
with  intent  to  cheat,  knowingly  pretended  it  to  be  genuine,  but  did 
not  aver  the  obtaining  money  thereby  to  have  been  done  knowingly, 
it  was  held  bad.  1  Chit.  Cr.  Law,  232,  233;  Rex  v.  Rushworth,  1 
Stark.  396,  and  Russ.  &  Ry.  317 ;  Commonwealth  v.  Slack,  19  Pick. 
304,  307. 

In  the  present  indictment,  the  only  distinct  averment  of  knowledge 
on  the  part  of  the  defendant  is  that  he  "knowingly  sold"  corrupt  and 
unwholesome  meat.  There  is  no  averment  that  he  knew  the  meat  to 
be  in  a  diseased  and  unhealthy  state,  or  unfit  for  food,  at  the  time  of 
the  sale.  The  word  "knowingly"  does  not  apply  to  and  qualify  every 
act  charged,  essential  to  constitute  the  offense  under  the  statute. 
Strictly  speaking,  and  construing  the  language  of  the  indictment  ac- 
cording to  the  technical  rules  of  pleading,  it  qualifies  and  gives  signifi- 
cance only  to  the  word  sell ;  so  that  in  substance  and  legal  effect  the 
averment  is  only  that  the  act  of  sale  was  done  by  the  defendant  know- 
ingly. But  there  is  no  allegation  of  any  knowledge  by  him,  at  the  time 
the  sale  was  made,  of  the  condition  of  the  meat.  The  whole  allegation 
might,  therefore,  be  true,  and  yet  the  defendant  might  be  innocent  of 
any  offense.  The  sale,  of  itself,  is  not  made  criminal ;  but  it  is  the 
sale  coupled  with  a  knowledge  of  the  diseased  state  of  the  thing  sold, 
which  constitutes  the  offense.  A  person  might  well  sell  meat  know- 
ingly, and  yet  be  whollv  ignorant  oTit-s  inin  i^^mTiljinii — ^he  averment 
of  knowledge  doesliiot  extendjjr.  _gnrh  p^^^  ^^  t^"*"  description  of  the 
offense,  in  which  it  is  an  es^ntial  element.  The  indictment  is,  there- 
fore, fatally  defective,  becaitse  it  does  not  describe,  in  apt  and  techni- 


Ch.  10)  THE    INDICTMENT.  133 

cal  terms,  any  criminal  act  for  which  the  defendant  can  be  held  re- 
sponsible, or  upon  which  any  valid  judgment  can  be  rendered. 

The  precedents  of  indictments  for  offenses  similar  to  that  intended 
to  be  set  out  in  the  present  indictment  are  quite  numerous,  and  are 
uniform  in  alleging,  not  only  that  the  act  of  sale  was  made  knowingly, 
but  also  in  averring  that  the  defendant  well  knew,  at  the  time  of  the 
sale,  the  corrupt  and  unwholesome  condition  of  the  articles  sold.  See 
2  Stark.  Cr.  PI.  682 ;  2  Chit.  Cr.  Law,  556,  558. 

Judgment  arrested.^* 


REX  V.  TRIGG. 

(Court  of  King's  Bench.     Style,  124.) 

The  court  was  moved  to  quash  a  presentment  against  Trigg  for  not 
going  before  a  justice  of  peace  to  take  the  oath  of  an  headbrow  to 
which  office  he  was  chosen  at  a  leet.  The  exceptions  taken  against  it 
were,  1.  That  it  doth  not  appear  that-airy_notice  was  given  to  him  to 
go  before  the  justice.  2dly^Xt-appears  fiot~tRat  the  justice  had  author- 
ity to  administer  the'oafh.  For  the  first  exception  the  presentment 
was  quashed.^* 


STATE  v.  HODGES. 

(Court  of  Appeals  of  Maryland,  1880.     55  M<3.  127.) 

Robinson,  J.,  delivered  the  opinion  of  the  court.^^ 

The  defendant  in  error  «was  indicted- for  receiving  stolen  goods, 
knowing  them  to  be  stolen.  A^-d^mtHrer  was  filed  to  the  indictment, 
and  the  court  below  sustained  the  demurrer  and  quashed  the  indict- 
ment.    *     *     * 

The  oitense  in  this  state  has  always  been  considered  as  a  misde- 
meanor. Kearney's  Case,  46  Md.  422.  It  was  not  necessary  therefore 
to  allege  in  the  indictment  that  the  property  in  question  was  feloni- 
ously received  by  the  defendant  in  error.     *     *     * 

Where  the  offense  charged  is  an  offense  at  common  law,  and  is  it- 
self manifestly  illegal,  the  averment  that  it  was  done  unlawfully  may 
not  be  necessary.  1  Chitty,  Crim.  Law,  160 ;  2  Hawk,  book  2,  §  25. 
P.ut  the  mere  receipt  of  stolen  goods,  knowing  them  to  be  stolen,  was 
not  per  se  an  offense  at  common  law,  because  the  owner  may  law- 
fully receive  back  his  own  goods,  knowing  them  to  be  stolen,  provided 
there  be  no  agreement  to  favor  the  thief;   or  one  may  lawfully  receive 

1 3  Compare  Commonwealth  v.  Elwell,  2  :\Ietc.  (Mass.)  190,  35  Am.  Dec.  3S)S 
(1840)  ;    U.  S.  V.  Nathan  (D.  C.)  61  Fed.  93G  (1894). 

14  Accord:  State  v.  Lemay,  13  Ark.  405  (1853) ;  State  v.  Munch,  22  Minn. 
C7  (1875). 

15  Part  of  this  case  is  omitted. 


134  THE    INDICTMENT.  (Ch.  10 

Stolen  property  for  the  purpose  of  keeping  the  goods  for  the  owner.  2 
East's  Crown  h^^v,  ch.  25,  §  141 ;  1  Hale,  650.  ATTd-arco^^ingly  we 
find  in  Chitty,  Archbold,  and  in  fa^^  all  the  books_o£Jorms,  the 
averment  that  the^goodi  were  rrrrtawfully  ruLci^Ld. 

It  was  sttg^estedin  argument  that  the  words  "against  the  peace," 
etc.,  to  be  found  in  the  conclusion  of  the  indictment,  is  a  sufficient  aver- 
iment  that  the  act  was  done  unlawfully.  The  words  "contra  pacem,"  it 
seems,  were  considered  necessary  in  all  indictments,  except  for  mere 
nonfeasance,  because  all  offenses  subject  to  public  prosecution  tend  to 
the  disturbance  of  the  public  peace. 

But  where  one  is  charged  with  a  common-law  offense,  the  mere 
averment  that  it  was  done  contra  pacem  does  not  dispense  with  the 
necessity  of  setting  out  in  proper  terms  the  circumstances  necessary 
to  constitute  the  alleged  common-law  offense. 

It  is  a  general  rule  that  nothing  material  shall  be  taken  by  intend- 
ment or  implication,  but  that  in  all  cases  the  indictment  must  describe 
•with  certainty  the  offense  of  which  the  party  is  charged,  and  must  aver 
the  facts  necessary  to  constitute  such  offense.     2  Hawk.  83. 

If  it  be  an  offense  created  by  statute,  it  is  only  necessary  to  describe 
it  in  the  language  of  the  statute.  In  this  state,  the  Code  merely  pre- 
scribes the  punishment  for  receiving  stolen  goods,  and  does  not  in  any 
manner  change  the  nature  or  character  of  the  offense  itself.  It  is  nec- 
essary, therefore,  to  set  out  in  the  indictment  all  the  circumstances 
necessary  to  constitute  the  offense  at  common  law,  and  inasmuch  as 
it  was  necessary  at  common  Iaw,__ta--€0«&tiliite__the_^offense,  that  the 
party  charged  should  rpppivp  thp  prppprty  Tin1awfn11y7"txrp>  are  of  opin- 
ion that  it  must  be  cr^  fjvfrrpH  in  t|-if>  inr^if-frppnt  The  indictment  in 
this  case  does  not  allege  that  the  goods  were  unlawfully  received  by 
the  traverser,  and  the  judgment  must  therefore  be  affirmed.^^ 


16  If  malice  be  a  necessary  ingredient  of  the  ofiTense,  malice  must  be  alleged. 
Sarah  v.  State,  28  Miss.  267.  61  Am.  Dec.  544  (1854). 

So,  when  knowledge  of  certain  facts  is  essential  to  the  offense,  the  indict- 
ment must  aver  such  knowledge.  People  v.  Behee,  90  Mich.  356,  51  N.  W.  515 
(1892). 
I  "In  the  case  of  Wong  v.  Astoria,  13  Or.  538,  11  Pac.  295,  it  was  held  that  to 
Villege  that  an  act  was  done  'willfully  and  unlawfully'  was  equivalent  to  alleg- 
ing that  it  was  done  'knowingly.'  In  the  case  of  Weinzorpflin  v.  State.  7 
Blackf.  (Ind.)  186,  195.  it  is  said  among  other  things,  as  follows:  '  "Feloniously" 
is  substituted  for  it  [the  word  "unlawfully"]  in  this  indictment,  and  is  not 
tantamount  to  it,  but  is  a  word  of  far  more  extensive  criminal  meaning.  The 
act  complained  of  coiild  not  have  been  done  feloniously,  and  not  unlawfully 
done.'  In  the  case  of  Carder  v.  State,  17  Ind.  307,  it  is  said  'that  the  word 
"feloniously,"  in  the  connection  in  which  it  was  used  in  the  indictment,  was 
identical  in  its  import  with  the  word  "purposely."  '  In  the  case  of  Com- 
monwealth v.  Adams,  127  Mass.  15,  17,  it  is  said:  'But  the  allegation  that  the 
defendant  maliciously  and  feloniously  incited  and  procured  principal  to  com- 
mit the  felony  ex  vi  termini  imports  that  she  acted  with  an  unlawful  intent.' 
In  the  case  of  Allen  v.  Inhabitants,  3  Wils.  318,  it  is  said  as  follows:  'Hei-e 
be  (the  prosecutor)  has  alleged  in  his  declaration  *  *  *  that  the  same 
was  committed  and  done  feloniously ;  and  that  act,  which  was  committed 
feloniously,   was  certainly   done  willfully,   unlawfully,   and   maliciously,   for 


^ii-  1^)  THE   INDICTMENT.  135 


STATE  V.  DORAN. 

(Sui.renie  Judicial  Court  of  Maine,  1904.    99  Me.  329,  59  Atl.  440,  105  Am    St 

Rep.  278.) 

Whitehouse,  J.^^  It  is  alleged  in  the  indictment  that  the  defend- 
ant, "with  force  and  arms,  the  car  numbered  18,65G  of  the  Boston  & 
Maine  Railroad  *  *  *  feloniousl^willfully,  and  maliciously  did 
attempt  to  break  and  enter  for  the  purpose  of  committing_a  felony." 
The  jury^  returned_a_j^erdi£t._of_gLiilty,  and  the  defendant  moved  in 
arrest  of  judgment ;  among  other  reasons,  "because  no  specific  oflfense 
against  the  laws  of  this  state  is  alleged  against  the  said  Doran  in  said 
mdictment,  and  that  no  judgment  could  be  rendered  upon  the  verdict 
m  said  court."  The  mgfinn  AA^a s  x^^erruled  by  the  presiding  judge,  and 
the  case  comes  to  this  caurt-oii_e.xceptions  to  this  ruling. 

The  indictment  appears  to  be  founded  on  section  9  of  chapter  132, 
Rev.  St.,  relating  to  "attempts  to  commit  offenses,"  and  section  8  of 
chapter  120,  Rev.  St.,  descriptive  of  the  offense  which  the  defendant 
was  charged  with  attempting  to  commit.  Section  9  of  chapter  132 
provides  that  "whoever  attempts  to  commit  an  offense,  and  does  any- 
thing towards  it,  but  fails,  or  is  interrupted  or  prevented  in  its  ex- 
ecution," shall  be  punished  as  therein  provided ;  and  section  8  of  chap- 
ter 120  declares  that  "whoever,  with  intent  to  commit  a  felony,  breaks 
and  enters  a  *  *  *  railroad  car  of  any  kind,  or  building  in  which 
valuable  things  are  kept,"  shall  suffer  the  penalty  therein  specified. 

It  appears  from  a  comparison  of  these  provisions  with  the  language 
of  the  indictment  that  only  the  general  terms  of  the  statute  have  been 
employed  to  state  the  charge  against  the  defendant,  both  with  respect 
to  the  "attempt"  to  commit  the  offense  and  the  "felony"  which  he  in- 
tended to  commit.  The  ittmctment-coataws-jieither  a  description  of 
the  overt  act  dD»^  by  the  ^accused  in  attempting  to  commit  the  crime 
charged,^  nor  a  specifiGatiefl-of-4he-particular  felony  which  the  de- 
fendant is  chargedwitlx-atte^mpting  to  commit  after  breaking  and  en- 
tering the  car.       '^- 

Where  the  offense  is  created  by  statute,  and  the  facts  constituting  it 
are  fully  set  out,  it  is  undoubtedly  sufficient  to  charge  the  offense  in 
the  language  of  the  statute  without  further  description.  1  Bish.  Cr. 
Proc.  §  611.  But  "in  all  criminal  prosecutions  the  accused  shall  have 
a  right  *  *  *  to  demand  the  nature  and  cause  of  the  accusation." 
Const.  Me.  art.  1,  §  6.  He  has  a  right  to  insist  that  the  facts  alleged 
to  constitute  a  crime  shall  be  stated  in  the  indictment  against  him  with 
that  reasonable  degree  of  fullness,  certainty,  and  precision  requisite 


donig  an  act  feloniously  is  doing  it  malo  aninio.  viz.,  with  malice.'  "  Valentine 
J.,  in  State  v.  Bush,  47  Kan.  201,  27  Pac.  834,  13  L.  R.  A.  607  (ISOl) 

In  Kitchinman's  Case,  Style,  374  (1053),  Roll,  C.  J.,  said:  "It  is  said  to  be 
preferred  nuUitiose  and  it  cannot  he  malitiose  except  it  be  also  falsely." 

1'  I'art  of  this  case  is  omitted. 


136  THE    INDICTMENT.  (Cb.  10 

to  enable  him  to  meet  the  exact  charge  against  him,  and  to  plead 
any  judgment  which  may  be  rendered  upon  it  in  bar  of  a  subsequent 
prosecution  for  the  same  offense. 

Hence,  if  a  statute  creating  an  offense  fails  to  set  out  the  facts  con- 
stituting it  sufficiently  to  apprise  the  accused  of  the  precise  nature  of 
the  charge  against  him,  a  more  particular  statement  of  the  facts  will 
be  required  in  the  indictment.  "And  where  a  more  generic  term  is 
used,  or  where  the  words  of  the  statute  by  their  generality  may  em- 
brace cases  which  fall  within  the  terms  but  not  within  the  spirit  or 
meaning  thereof,  the  specific  facts  must  be  alleged  to  bring  the  de- 
fendant precisely  within  the  inhibition  of  the  law."  Enc.  of  PI.  and 
Prac.  vol.  10,  p.'  487 ;  Wharton's  Cr.  PI.  and  Prac.  §  220.  Indeed,  it 
is  an  elementary  rule  of  criminal  pleading  that  every  fact  or  circum- 
stance which  is  a  necessary  ingredient  in  a  prima  facie  case  of  guilt 
must  be  set  out  in  the  indictment. 

With  respect  to  indictments  for  attempts  to  commit  off'enses  Mr. 
Bishop  says :  "An  attempt  is  an  intent  to  do  a  particular  criminal  thing 
with  an  act  towards  it  falling  short  of  the  thing  intended  [1  Bish.  Cr. 
Law,  §  728],  and  on  principle  we  see  that  we  must  set  out  the  act 
which  was  committed  and  the  specific  intent  which  accompanied  it." 
Bish.  on  Stat.  Cr.  §  391;  2  Crim.  Proc.  §§  1,  92;  Directions  and 
Forms,  §  100.     *     *     * 

Again,  as  already  Jioted,  the  indictijieiit_£ails  to  specify  the  particu- 
lar felony  which  it  is  allegAl  .tTia^^efendant  intended  to  commit.  This 
is  anoth£i__fataljdefect.  The  word^Telony"  is  not  the  name  of  any 
distinctive  offense!  Tt  is  a  generic  term,  employed  to  distinguish  cer- 
tain high  crimes,  as  murder,  robbery,  rape,  arson,  and  larceny,  from 
other  minor  ones,  known  as  "misdemeanors."  The  averment  that  the 
defendant  broke  and  entered  the  car  for  the  purpose  of  committing  a 
felony  wholly  failed  to  apprise  him  of  the  specific  offense  which  it  is 
claimed  he  intended  to  commit.  Whether  it  would  be  contended  by 
the  state  that  he  intended  to  commit  murder,  or  robbery,  or  rape,  or 
larceny,  he  is  not  informed.  Upon  the  trial  of  such  an  indictment 
he  was  liable  to  be  oppressed  by  the  introduction  of  evidence  which  he 
could  not  anticipate  or  be  prepared  to  meet.    *    *    * 

Motion  sustained.    Judgment  arrested.^* 


II.  Ave;rme;nt  of  Timp:  and  Place  oi^  the;  Oi^fense 

ANONYMOUS. 

(Court  of  King's  Bench,  1486.    Year  Book  2  Hen.  VII,  10,  pi  6.) 

In  the  King's  Bench  upon  an  indictment  taken  in  the  sheriff's  tourn 
it  was  found  that  one  J.  with  force  and  arms  on  the  first  day  of  May 

18  Accord:   Sarah  v.  State,  28  Miss.  267,  61  Am.  Dec.  544  (1854). 


Ch.  10)  THE    INDICTMENT.  137 

at  H.  and  the  fourth  day  of  May  at  C.  in  D.  made  an  assault,  beat,  and 
grievously  maltreated,  and  one  horse  of  the  value  of,  etc.  then  and 
there  being-,  feloniously  stole,  took  and  carried  away,  and  because  there 
were  in  the  commencement  two  several  days  and  places,  and  in  the 
conclusion  it  was  then  and  there  one  horse,  etc.  and  tli£r£_£annot  be 
a  felony  laid  in  two  places  at  t\va_timn^,  withnut  ripceial  mattcx, — (For 
a  felony  cannot  be  done  except  at  one  time  and  in  one  place,  and  it 
is  uncertain,  in  which  of  the  said  places,  or  on  which  of  the  said  days 
it  is  intended,  and  so  it  is  uncertain.)  And  because  of  this,  as  to  the 
felony  let  him  go  quit. 


COTTON'S  CASE. 
(Court  of  Queen's  Bench,  1590.     Cro.  Eliz.  T.'^.S.) 

Cotton,  an  attorney  of  the  Queen's  Bench,  was  indicted,  for  that 
he  such  a  day,  year,  and  place,  having  an  axe  covertly  in  his  hand, 
feloniously  stjTLck  ^"^  Mprg?''^^  Spencer,  whereof  she  the  same  day 
and  ye^x^died.  Exception  was  taken  to  the  indictment,  because  there 
was  not  any  place  alledp;-ed  where  he  struck  her,  nor  \vhere,she  died. 

PoPHAM,  J.  For  the  first,  it  is  all  one  with  Lewis's  case,  in  this 
court,  which  was  ruled  to  be  ill  for  this  cause ;  for  there  it  was  that  he, 
such  a  day,  year,  and  place,  having  such  a  weapon  in  his  hand,  feloni- 
ously struck  the  party,  dans  ei  unam  plagam  mortalem.  so  there  was 
not  any  place  alledged  where  he  struck,  but  only  where  he  had  the 
weapon  in  his  hand.  Wherefore  iLwas  resolved  to  be  ill.  It  is  also  ill 
for  the  other  reason;    because  it  is  not  shown  where  she  died.^* 

1 0  The  -place  of  every  material  fact  must  be  stated  with  sufficient  certainty 
to  show  that  the  court  has  jurisdiction  of  the  cause  (State  v.  Johnson.  ."2  Tex. 
OG  [1809]),  and  to  enable  tiie  defendant  to  prepare  his  defense,  and  to  plead 
the  judscment  upon  the  indictment  in  bar  of  a  second  prosecution  for  the  same 
offense  (State  v.  Cotton,  24  N.  H.  143  [1S.")1]).  It  is  usual  to  state  the  county 
in  which  the  offense  was  committed ;  but  it  is  sufficient,  at  least  in  indict- 
ments for  offenses  not  capital  (Connnouwealth  v.  Sprinsfield,  7  Mass.  9  [lS10|i. 
to  give  a  more  particular  description  of  the  place,  as  a  certain  town,  if  the 
court  can  take  judicial  cognizance  of  the  fact  that  such  place  is  entirely 
within  the  county  (Vanderwerker  v.  People,  5  Wend.  .530  [1S:50]). 

If  the  jurisdiction  of  the  court  is  not  coextensive  with  the  county,  it  is  not 
sufficient  to  state  that  the  oftense  was  committed  in  the  county.  A  more  min- 
ute description  of  the  place  is  necessary.  People  v.  Wong  Wang.  92  Cal.  277. 
28  Pac.  270  (1891).  So  if  the  act  alleged  be  a  crime  only  when  done  in  a  par- 
ticular locality,  it  must  be  averred  that  it  was  done  in  such  locality.  *State 
V.  Ilogan,  31  Mo.  340  (18G1).  For  the  venue  of  offenses  begun  in  one  locality 
and  completed  in  another,  see  Connor  v.  State.  29  Fla.  4.">5.  10  South.  S91,  30 
Am.  St.  Rep.  126  (1892) ;   Morrissey  v.  People,  11  Mich.  .S27  (ISGSi. 

If  a  minor  locality  has  heen-aiuaiiiecLjtneed  not  be  proved  as  laid.  Proof 
that  the  offense  was'  pnimiiiftpd  Miiv^vhere~wtTTrtTr-4ho  lurisdiction  of  t^e  court 
will  suffice  (Commonwealth  v.  Tolliver.  8  Gray  [Mass.]  380,  69  Am.  Dec.  2.")2 
[1857]),  unless  the  ^tatei"«»*-al-theminor  locality  is  necessary  to  a  proper 
description  of  tlWiifiteBse.  (People^vTSlater,  5  Hill  [N.  Y.]  401  [1843]).  Com- 
monwealth V.  Heffron.  102  Mass.  148  [1869] t.  Cf.  State  v.  Verden.  24  Iowa. 
126  (1867).  If  such  descrintion_is_essential.  it  must  be  proved  as  described, 
even  though  the  description  be  unnecessarily  minute.     State  v.  Kelley,  66  N. 


138  THE    INDICTMKNT.  (Cb.  10 

STATE  V.  JOHNSON. 
^Supreme  Court  of  Texas,   1869.     32  Tex.   9G.) 

The  appellee  was  indicted  for  the  theft  of  $160  in  r^in  and  $G0  in 
currency,  the  property  of  B.  H.  Denson.  The  indictment  was  quashed 
on  his  motion,  and  the  district  attorney  appealed  on  behalf  of  the  state. 

E.  B.  Turner,  Attorney  General,  for  the  State,  conceded  the  insuf- 
ficiency of  the  indictment. 

Lindsay,  J.  The  motion  to  quash  the  indictment  in  this  case  was 
properly  sustained.  There  is  no_allegation  in  it  of  eithei^-the  time  or 
of  the  place  ofJlie_iuimmTS5ro«--a£ji^^  Tjaefirst  is  necessary, 

that  it  may  appearfrom  the  charge  Ji^  is  not  barred^BvHh^e  statute  of 
limitations.  The  other  is  indispensable,  that  the  court  may  know 
whether  it  has  jurisdiction  of  'the  cause. 

For  these  defects  it  was  rightfully  quashed.  The  judgment  is  af- 
firmed. 


ANONYMOUS. 

(Upper  Bench,  1655.     Style,  448.) 

The  court  was  moved  to  quash  an  indictment  grounded  upon  the 
statute  of  5  EHz.  preferred  against  one  for  using  the  trade  of  a  draper, 
not  having  served  as  an  apprentice  in  that  trade,  according  to  the  stat- 
ute, upon  these  two  exceptions:  1.  It  is  said  he  used  the  trade  in  the 
year  1653,  and  doth  not  say  the  yea£_of_jQiir  T.,ord.__2dly.  It  is  not 
said  that  the  jury  was  returned,  nor-aviien€€' they  were,  and  both  ex- 
ceptions were  held  good  by  RoijLr-^kk^  Justice,  and  the  indictment 
was  thereupon  quashed. 

H.  577,  29  Atl.  843  (1891).  Where  the  venue  has  been  properly  stated  in  the 
caption,  or  commencemeut,  it  is  sufficient  to  charge  that  the  act  was  done 
"then  and  there"  (State  v.  Slocum,  8  Bhickf.  [Ind.]  315  [1846],  or  "in  the 
county  aforesaid"  (Eaves  v.  State,  113  Ga.  749,  39  S.  E.  318  [1901]). 

St.  14  &  15  Vict.  c.  100,  §  23,  provides:  "It  shall  not  he  necessary  to  state 
the  venue  in  the  body  of  any  indictment,  hut  the  county,  city  or  other  juris- 
diction named  in  the  margin  thereof  shall  be  taken  to  be  the  venue  for  all  the 
facts  stated  in  the  body  of  such  indictment:  I'rovided  that  in  cases  where 
local  description  is  or  hereafter  shall  be  re<iuired,  such  local  description  shall 
be  given  in  the  body  of  the  indictment.  *  *  *  "  More  or  less  similar 
statutes  have  been  enacted  in  some  of  the  United  States.  See  State  v.  Keel. 
54  Mo.  182  (1873).  Code  Cr.  Proc.  N.  Y.  §  284.  makes  it  a  requisite  for  a 
valid  indictment  that  "it  can  be  understood  therefrom  that  the  crime  was 
committed  at  some  place  within  the  jurisdiction  of  the  court."  See  People 
v.  Horton,  62  Hun,  610.  17  N.  Y.  Supp.  1  (1892).  A  similar  provision  is  con- 
tained in  Comp.  Laws  Nev.  §  4208.  See  State  v.  Buralli,  27  Nev.  41,  71  Pac. 
532  (1903). 


Ch.  10)  THE    INDICTMENT.  139 

REX  V.  MASON. 
(Court  of   King's   Bench,   IGSO.     2   Show.   126.) 

Indictment  against  the  defendant  on  the  statute  33  Hen.  VIII,  c. 
9,  for  shooting  in  a  gun,  quod  non  habens  terras  aut  tenementa  ad 
valorem  nono  die  Aprilis  anno,  &c.  apud,  &c.  sagittavit. 

Exception  was  taken  and  allowed,  for  that  "he  not  having"  shall 
be  intended  to  relate  to  the  time  of  the  indictment,  and  not  to  the  time 
of  the  fact. 

And  therefore  quashed. -° 


MOLETT  V.  STATE. 

(Supreme  Court  of  Alabama,  1859.    33  Ala.  408.) 

A.  J.  Walker,  C.  J.-^  The  indictment,  found  on  the  17th  Novem- 
ber, 1857,  alleges  the  offense  to  have  been  committed  before  the  find- 
ing of  the  indictment  and  after  the  1st  day  of  March,  1856.  The  of- 
fense may  have  been  committed  after  the  1st  day  of  March,  1856,  and 
not  within  12  months  before  the  finding  of  the  indictment.  JThe  in- 
dictment fails,  therefore,  to  show  ^hTe_aiLnmission  of  the  misdemeanor 
within  the  period  prescribed  by  the  statute  of  limitations.  Before  the 
Code,  this  would  have  been  "aT'taial  objection :  but  it  is  not  now  neces- 
sary to  make  any  avermenMhaLthe  indictable_act  was  done  within  the 
time  mentioned  in  the  statute  of  limitations^  Nospeti^ation  of  the 
time  is  necessary,  unless  trnTels  a  material  ingredient  of  the  oft'ense. 
Code,  §  3512;  and  form  No.  1,  page  698.-- 

The  forms  prescribed  by  the  Code  make  sufficient  an  allegation  that 
the  offense  was  committed  before  the  finding  of  the  indictment.  It 
cannot  vitiate  that  the  indictment,  instead  of  embracing  within  its 
allegation  all  past  time,  limits  to  a  certain  specified  day  in  the  past  the 
period  within  which  the  offense  was  committed.     *     *    * 

The  judgment  of  the  court  below  is  reversed,  and  the  cause  re- 
manded. 

20  Accord:    Slkes  v.  State,  67  Ala.  77  (18S0). 

21  Part  of  this  case  is  omitted. 

22  Many  states  have  similar  statutes.  See  State  v.  Ackerman,  51  La.  Ann. 
1213,  26  South.  80  (1S09) ;  State  v.  Peters,  107  N.  C.  876.  12  S.  E.  74  (IS'JO). 
See,  also,  Fleming  v.  State.  1.S6  Ind.  140.  ,36  N.  E.  154  (1S94). 

Compare  Ruge  v.  State,  62  lud.  388  (1878). 


140  THE   INDICTMENT.  (Cll.  10 

STATE  V.  BEATON. 

(Supreme  Judicial  Court  of  Maine,  1887.    79  Me.  314,  9  Atl.  728.) 

On  exceptions  by  respondent  from  Supreme  Judicial  Court,  Lincoln 
county. 

An  appeal  from  the  decision  of  a  trial  justice  on  a  complaint  and 
warrant  for  fishing  for  and  catching  lobsters  in  violation  of  law. 

Walton,  J.  Neither  a  complaint  nor  an  indictment  for  a  criminal 
ofifense  is  sufficient  in  law,  unless  it  states  the  day,  as  well  as  the  month 
and  year,  on  which  the  supposed  offensT^as  committed.  In  this  par- 
ticular, the  complaint  in  this  case  is  fatally  defective.  It  avers  that 
"on  sundry  and  divers  days  and  times  between  the  twenty-third  day  of 
September,  A.  D.  1885,  and  the  thirtieth  day  of  September,  A.  D. 
1885,"  the  defendant  did  the  acts  complained  qf,_Hut  it  does  not  state 
any  particular  day  on  which  ariv_one  of  the  acts  named  was  commit- 
ted. Such  an  averment  of,  time  i"  not  suffiri^nt  State  v.  Baker,  34 
Me.  52 ;   State  v.  Hanson,  39  Me.  337,  and  authorities  there  cited. 

Exceptions  sustained.     Complaint  quashed. 

Peters,  C.  J.,  and  Virgin,  Libbey,  Emery,  and  Haskeee,  JJ.,  con- 
curred. 


STATE  V.  CITY  OF  AUBURN. 

(Supreme  Judicial  Court  of  Maine,  1894.     86  Me.  276,  29  Atl.  1075.) 

Peters,  C.  J.  The  city  of  Auburn,  having  been  indicted  for  its  fail- 
ure to.-C]3en__a--h%hway  laid  out  within  its  limits  bjT^ounty  commis- 
sionCTsTclaims,  upon  demurrer  thereto,  that  the  indictment  found 
against  them  is  insufficient  in  some  respects. 

It  is  contended  that  it  is  bad  becaii§£-the  city  of  Auburn,  so  named 
in  the  indictment,  is  not  described -^s  a  cur^oration  of  any  kind,  and 
more  especially  because  there  is-j"^  avpfjriPTri-  that  the  city  of  Auburn 
is  situated  within  nnj-rnijjitjr  nf  thi"  "tntr  Such  omissions  are  un- 
doubtedly formal  defects,  indicating  a  want  of  care  in  the  work  of  the 
pleader  that  is  not  to  be  commended.  The  omissions  are  supplied, 
however,  to  some  extent  by  certain  indirect  allegations  contained  in 
the  indictment.  The  way  is  alleged  to  have  been  laid  out  by  the  com- 
missioners of  Androscoggin  county  within  the  city  of  Auburn,  and  the 
indictment  avers  that  it  was  found  at  a  term  of  court  begun  and  holden 
at  Auburn  within  and  for  the  county  of  Androscoggin.  Aided  by  these 
implications,  we  deem  it  warrantable  for  us  to  determine  as  a  matter 
of  judicial  knowledge  that  the  city  of  Auburn  described  in  the  indict- 
ment is  the  municipal  corporation  of  that  name  situated  in  our  county 
of  Androscoggin.  The'case'of  Com.  v.  Desmond,  i03  Mass.  445,  sup- 
ports this  vTe\ 


Oh.  10)  THE    INDICTMENT.  141 

The  indictment  further  alleges  that  the  mandate  of  the  commission- 
ers required  that  the  way  should  be  opened  and  built  by  the  city  within 
three  years  from  March  31,  1S9U,  and  that  for  the  period  of  time  be- 
tween March  31,  1890,  and  March  31,  1893,  as  well  as  ever  since,  the 
city  had  wholly  neglected  to  open  and  build  the  same ;  and  it  is  con- 
tended by  the  defense  that  such  an  averment  as  to  the  time  of  the  com- 
mission of  the  alleged  offense  is  bad  for  its  generality.  In  support 
of  this  objection  the  defense  invokes  the  general  principle  of  pleading, 
recognized  in  our  own  cases,  that  some  particular  day  must  be  named 
in  the  indictment  on  which  the  alleged  offense  was  committed,  and 
that,  too,  even  if  the  offense  be  set  out  with  a  continuando. 

In  our  view,  this  criticism  does  not  fairly  apply  to  an  indictment  like 
the  present.  The  princi_ple  referred  to  applies  mostly  to  offenses  of 
commission,  and  not  to  those~of  omii;sion  ;  tcracts  done,  rather  than 
acts  omitted  to  be  done;  tooffeiises~artX)Tnplished  by  active,  and  not 
passive,  means.  Of  course,  the  principle  contended  for  would  apply 
as  strongly  to  an  act  of  nonfeasance  as  to  an  act  of  misfeasance,  when 
such  act  can  be  logically  and  correctly  described  as  having  been  done 
on  some  particular  day,  or  upon  some  continuous  days.  In  the  pres- 
ent case  it  would  not  beUjuie  to  charge  the  offense  as  committed  on 
either  the  first  or  the  last  day  eiJJie_tliree_}'ears  allowed  the  city  with- 
in which  to  construct  the^onfemplafed  road,  or  on  any  intermediate 
day  or  days,  or  as  committed  upon  any  time  short  of  the  wliole  period 
of  three  years.  The  "ff^n'jf  wns  growing  for  three  years,  culminating 
at  the  expiration  of  that  period. — T^e  ruling  of  the  court  on  an  analo- 
gous question  in  Smiley  v.  Inhabitants  of  Merrill  Plantation,  84  Me. 
322,  24  Atl.  872,  sustains,  as  far  as  it  goes,  our  conclusion  here. 

Exceptions  overruled.-^ 


STATE  V.  SMITH. 

(Supreme  Court  of  Iowa,  1S93.    88  Iowa,  178,  55  N.  W.  198.) 

Given,  J.^*  *  :i=  *  jj^  ^|-jjg  case^jre  liaye  the  anomaly  of  a  de- 
fendant insisting  uponthe  sufficiency  of  an  indictment  against  him- 
self. ^Appellant  contenas  that  tlie  tirst  indictment  returned  against  him 
was  sufficient,  and  it  was  therefore  error  to  discharge  the  trial  jury 

2  3  "Anotber  branch  of  this  objection,  viz.,  that  the  time  of  committing  the 
offense  is  not  certainly  averred,  by  the  words  'on  or  about,'  Ave  consider  answer- 
ed by  the  remarks  already  made.  The  two  latter  words  in  this  averment  have 
no  meaning  in  this  place,  and  are  surplusage."  Church,  C.  J.,  in  Rawson  v. 
State,  19  Conn.  292  (1848).  Accord:  Under  statutes.  State  v.  Hoover.  31 
Ark.  G76  (1877).  But  see  State  v.  Baker,  34  Me.  52  (1852) ;  State  v.  O'Keefe, 
41  Vt.  691  (18G9). 

2  4  Part  of  this  case  is  omitted. 


142  THE    INDICTMENT.  (Cll.  10 

to  resubmit  the  case  to  the  grand  jury,  and  to  put  him  upon  trial  a 
second  time.  The  indictment  returned  February  24,  1891,  charged 
the  crime  to  have  been  committed  on  the  1  Ttli^ayTof-Becember,  1891. 
The  time  is  nowhere  else  stated.  Appellant's  counsel  contend  that  this 
allegation  of  time  is  immaterial ;  that  the  true  time  could  be  proven 
under  the  allegation,  and  therefore  the  indictment  was  sufficient.  Such 
was  certainly  not  the  view  entertained  when  the  motion  for  a  verdict 
was  urged. 

Appellant  cites  section  4306  of  the^Code,  which  provides  that  no  in- 
dictment is  insufficie'nP'for  want-erf^'' allegation  of  the  time  or  place 
of  any  material  iact^.j;;dlsnJheMme-art6-p\2iCe  have  once  been  stated." 
The  section  is  inapplicable.  This  is  not_^"  Qmi^&ipm-ro  .'^ate  the  time 
when  it  had  nnrp  hppli^tatpfl  hnt  c^tntinp^arLimeoss^ble  time.  He  also 
cites  sectiQii_43457-^\?RTcirprovides  that  the  indictment  is  sufficient  if  it 
can  be  understood  therefrom  "that  the  offense  was  committed  some 
time  prior  to  the  finding  of  the  indictment."  It  cannot  be  so  under- 
stood from  this  indictment.  It  states  but  one  date ;  a  date  not  prior, 
but  subsequent,  to  the  finding  of  the  indictment.  If,  as  in  State  v. 
Brooks,  85  Iowa,  366,  52  N.  W.  240,  a  date  prior  to  the  finding  of  the 
indictment  had  been  once  stated  therein,  the  indictment  might  be  held 
sufficient.  State  v.  Pierre,  39  La.  Ann.,  indexed  as  page  915,  3  South. 
60,  is  cited.  Because  of  an  error  in  indexing  we  have  been  unable  to 
find  the  case.  The  index  states  the  point  decided  as  follows:  "An  im- 
material and  impossible  date  in  an  indictment  may  be  corrected  at  any 
time,  particularly  when  the  date  is  not  of  the  essence  of  the  offense 
charged." 

The  statement  of  the  date  upon  which  an  oft"ense  was  committed 
is  not  an  immaterial  statement.  The  date  is  material,  not  only  as  in- 
formation to  the  accused,  but  to  show  that  the  crime  was  committed 
prior  to  the  finding  of  the  indictment,  and  within  the  statute  of  limita- 
ions.  State  v.  Dominique,  39  La.  Ann.  324,  1  South.  665,  also  cited, 
is  not  applicable.  In  that  case  an  amendment  of  an  information  for 
larceny  was  allowed  under  the  statute  as  to  the  given  name  of  the 
owner  of  the  stolen  property. 

In  Myers  v.  Com.,  79  Pa.  308,  referred  to,  an  indictment  was  re- 
turned in  December,  1874,  charging  the  crime  to  have  been  commit- 
ted on  the  11th  day  of  October,  1874.  Under  the  statutes  of  that  state 
the  indictment  was  amended  so  as  to  read  the  11th  day  of  November. 
The  case  is  not  in  point,  for  the  reasons  that  the  date  alleged  was  not 
an  impossible  date,  and  that  we  have  no  such  statute.  No  indictment 
is  sufficient  that  does  not  state  the  time  at  or  about  which  the  offense 
was  committed,  and,  if  it  states  an  impossible  time,  it  fails  to  charge 
an  offense.  We  ^rp  in  np,  ripubt  butjihaf  the  fir<;f  jndirtmpnt  :vns  in- 
sufficient.  "The  power  of  the  court  to  set  aside  the  indictment  if  in- 
sufficient, arid  to  resubmit  the  case  to  the  grand  jury,  is  not  question- 

f^ft         'K       '(»       ^ 


Ch.  10)  THE    INDICTMENT.  143 

Entertaining  the  views  we  have  expressed,  we  think  the  judgment 
of  the  district  court  is  fully  authorized  by  law,  and  it  is  therefore  af- 
firmed.-'^ 

KiNNE,  J.,  took  no  part. 


"       STATE  V.  KENNEDY. 
(Court  of  Errors  and  Appeals  of  Louisiana,  1845.    8  Rob.  590.) 

King,  J.  *  *  *  ^*  The  indictment,  after  stating  the  mortal  blow, 
with  the  usual  averments  of  time  and  place,  proceeds:  "Of  which 
mortal  wound,  so  given  by  the  said  Samuel  Kennedy,  with  the  deadly 
weapons  aforesaid,  to  the  said  Benjamin  Wood  Wait,  the  said  Benja- 
min Wood  Wait  did  then  and  thete  suffer  and  langyish,  and  languish- 
ing did  live,^nd  a  few  hours  after  did_di£_ofJhe_saidjnortal  wound." 

No  principle  appears  to  "be  better  seLlTHd  than  that.lnindictments  for 
high  offenses,  those  termed  felonies  at  common  law,  the  averment  of 
time  and  place  is  to  be  repeated  to  every  issuable  and  triable  fact. 
When  these  have  been  once  set  forth  with  certainty,  they  may,  in 
every  subsequent  averment,  be  referred  to  by  the  words  "then  and 
there,"  which  are  deemed  equivalent  to  a  repetition  of  the  time  and 
place!  The  time  should  be  stated  with  such  certainty  that  no  doubt 
can  be  entertained  of  the  period  really  intended ;  and  such  is  the  pre- 
cision required  in  this  respect  that  any  uncertainty  in  the  averment  of 
time  and  place  will  vitiate  the  indictment. 

The  material  facts  in  murder  are  the  mortal  stroke  and  the  con- 
sequent death,  and  the  death  must  appear  upon  the  record  to  have  oc- 
curred within  a  year  and  day  from  the  time  when  the  mortal  stroke 
was  given.  The  averment,  then,  of  each  of  these  material  facts  must, 
under  the  well-established  rules  of  criminal  pleading,  be  accompanied 
by  an  allegation  of  a  certain  time  and  place.  Thus,  to  aver  that  the 
assault  was  made  on  two  days,  as  on  the  1st  and  2d  of  May,  or  on  an 
impossible  day,  is  such  an  uncertainty  as  will  vitiate  the  indictment. 

If  an  indictment  for  murder  state  that  A.,  at  a  given  time  and 
place,  having  a  sword  in  his  right  hand,  did  strike  B.,  it  is  bad,  for 
the  time  and  place  relate  to  the  having  the  sword,  and  it  is  not  stated 
when  or  where  the  stroke  was  given. 

A.,  at  a  certain  time  and  place,  made  an  assault  upon  B.,  et  eum 
cum  gladio  percussit,  was  held  to  be  bad,  because  it  was  not  said  ad- 
tunc  et  ibidem  percussit;  the  copulative  conjunction  "and,"  without 
the  repetition  of  the  time  and  place  to  this  material  ingredient  of  the 


2  5  Compare  Vowells  v.  Commonwealth,  84  Ky.  52  (1886);   Conrand  v. 
65  Ark    5.59,  47   S.   W.   628  (1898);     Commonwealth  v.    Snell,   189   Mas 
75  N.  E.  75,  3  L.  R.  A.  (N.  S.)  1019  (1905). 

2  6  Part  of  this  case  is  omitted.     Nicholls,  J.,  dissented. 


State. 
ass.   12. 


144  THE    INDICTMENT.  (Ch.  10 

offense,  being  deemed  insufficient.  In-imsdcmGanor^  the  same  strict- 
ness_k_ticU^4^uired.  1  Chitty,  218,  219 ;  Starkie,  Cr.  PI.  68,  62,  65 ; 
2  Hale,  178 ;  Archbold,  Cr.  PI.  34 ;   2  Hawk.  c.  23,  §  88. 

We  will  not  further  multiply  instances  of  this  precision,  required  in 
the  averment  of  time  and  place  to  every  material  fact  in  capital  crimes. 
The  books  are  full  of  them,  and  no  principle  is  better  settled.  The 
decision  of  the  question  depends  altogether  upon  authority,  and  the 
language  of  the  authors  cited^  upon  this  as  upon  other  points,  has  been 
used  as  nearly  as  possible. 

Testing  the  indictment  under  consideration  by  these  well-established 
rules,  we  find  that,  although  there  i5_a_&ufficient  certainty  in  setting 
forth  the  time  and  place  of  the  mortal  strokeTTet  there^  no  averment 
of  the  time  and  place  of  the  death.  The  "then  and  there^'^Tm-mediatelv 
precede  and  refer  to  the  "languished,  and  languishing  did  live,"  and 
not  to  the  allegation,  "and  a  few  hours  after  did  die."  The  copulative 
"and,"  it  has  been  seen,  is  insufficient  to  connect  the  time  and  place 
with  the  death.  Nor  will  the  grammatical  construction  of  the  sen- 
tence support  the  position,  assumed  in  argument,  that  the  "then 
and  there"  refer  to  the  death.  The  facts  of  the  time  and  place  of  death 
cannot  be  inferred  or  ascertained  by  intendment.  They  must  be  pre- 
cisely and  distinctly  stated.  Nor  will  the  averment  in  the  conclusion 
of  a  correct  time  and  place  of  death  cure  this  defect,  but,  on  the  con- 
trary, will  render  it  repugnant  to  the  statement.  At  the  close  of  the 
indictment  the  legal  conclusions  are  to  be  drawn  from  the  facts  pre- 
'/iously  set  forth  in  the  statement.  The  facts  of  the  time  and  place  of 
the  death  not  having  been  set  forth  in  the  statement,  the  legal  conclu- 
sion cannot  be  drawn  that  the  deceased  was  murdered  in  the  parish  of 
Orleans,  on  the  29th  day  of  December,  1844. 

The  Attorney  General  has  called  our  attention  to  the  statute  of  1805, 
which  directs  that  indictments,  divested  of  all  unnecessary  prolixity, 
changing  what  ought  to  be  changed,  shall  be  according  to  the  com- 
mon law,  and  contends  that  the  frequent  repetitions  of  time  and  place 
constitute  some  of  the  prolixities  contemplated  by  the  act,  of  which 
courts  are  authorized  to  divest  indictments.  We  are  not  prepared  to 
give  this  construction  to  the  statute.  We  do  not  believe  that  the  Leg- 
islature intended  to  confer  upon  courts  authority  to  legislate  upon  the 
subject  of  criminal  proceedings,  or  the  framing  of  indictments,  but 
merely  to  direct  prosecuting  officers  to  omit  those  prolixities  which 
were  acknowledged  to  be  such  at  common  law,  and,  consequently,  un- 
necessary, although  habitually  inserted  in  indictments ;  such  as  the 
averment  that  the  defendant  "not  having  the  fear  of  God  before  his 
eyes,"  etc.,  with  many  other  needless  to  be  enumerated,  which  are  found 
in  old  precedents,  and  even  in  those  of  more  modern  date.  The  chan- 
ges directed  by  the  act,  we  think,  are  those  which  are  necessary  to  make 
our  proceedings  conform  to  our  own  laws  and  form  of  government; 
as,  for  instance,  instead  of  an  indictment  commencing:    "Middlesex, 


Ch,  10)  THE    INDICTMENT.  145 

to  wit :  The  jurors  of  our  lord  the  king" — it  should  begin :  "The  State 
of  Louisiana,  Parish  of  Orleans:  The  grand  jurors  of  the  state  of 
Louisiana,"  with  many  others  of  a  like  nature.  If,  however,  this  legis- 
lative authority  was  ever  conferred  upon  courts,  it  has  long  since  been 
withdrawn  by  the  Constitution. 

Whatever  has  been  determined  to  be  an  essential  averment  in  an  in- 
dictment at  common  law  will  be  deemed  necessary  here,  unless  a  stat- 
ute of  the  state  has  removed  the  reason,  and  with  it  the  necessity,  for 
the  allegation.  At  common  law  we  have  seen  that  the  averment,  with 
certainty,  of  time  and  place  of  the  death  has  been  held  to  be  indis- 
pensable in  indictments  for  murder,  and  for  sufficient  reasons.  These 
reasons  have  not  been  removed  by  our  statutes,  but  exist  here  in  full 
force;  for  it  is  equally  true  here,  as  in  England,  that  the  death  must 
have  occurred  within  a  year  and  a  day  from  the  time  when  the  blow 
was  given  to  constitute  murder,  and  that  the  right  to  a  trial  by  a  jury 
of  the  vicinage  is  secured  to  every  citizen. 

We  find,  then,  that  the  indictment  wants  one  of  the  averments  es- 
sential to  its  vaHdity  at  common  law,  and  that  the  averment  is  equally 
necessary  under  our  laws.  The  defect  is  not  cured  by  the  verdict,  and 
the  judgment  must  be  arrested. 

The  Attorney  General  has  commented  forcibly  upon  the  regrets  ex- 
pressed by  learned  and  able  English  judges  that  the  great  niceties  re- 
quired in  framing  indictments  offered  too  frequent  opportunities  for 
the  escape  of  culprits,  the  tendency  of  w^hich  was  rather  the  encourage- 
ment than  the  suppression  of  crime.  Lord  Hale  said  that  the  strict- 
ness required  had  grown  to  be  a  blemish  and  an  inconvenience  in  the 
law.  Similar  opinions  have  since  been  expressed  by  Lord  Kenyon  and 
Lord  Ellenborough.  1  Chitty,  170.  But  we  are  not  informed  that 
these  learned  judges  ever  felt  themselves  authorized  to  disregard  the 
law,  such  as  it  was,  or  to  dispense  with  the  observance  of  those  nice- 
ties, of  whose  existence  they  complained.  Their  remarks  apply  with 
full  force  to  the  criminal  laws  of  this  state ;  but  the  power  to  remedy 
the  evil  resides  in  the  legislative  branch  of  the  government,  and  it  is 
to  be  regretted  that  it  has  not  already  been  exercised. 

The  English  Parliament,  attentive  to  the  suggestions  of  its  courts, 
has  provided  remedies  for  many  of  the  inconveniences  of  the  com- 
mon law.  The  act,  however,  has  been  passed  since  1805,  and  has  no 
force  in  this  state.     Archbold,  Stat.  Geo.  IV. 

It  is  therefore  ordered  that  the  judgment  of  the  inferior  court  be  re- 
versed, that  the  verdict  in  the  case  be  set  aside,  and  the  judgment 
thereon  arrested. 

Mik.Cb.Pr.— 10 


146  THE    INDICTMENT.  (Ch.  10 

III,  Description  of  Persons  Connected  with  the  Offense 
MEMORANDUM. 

(Court  of  King's  Bench,  1496.     3  Dyer,  2a"a.) 

That  in  Trin.  Term,  in  the  twelfth  year  of  Hen.  VIT,  in  B.  R.  a 
man  was  indicted  for  a  trespass,  assault,  and  battery  upon  one  John. 
parish  priest  of  D.  in  the  county  of  U.  without~any  sirname  of  the 
priest.  And  an  exception  taken  to  it  by  Segewick  for  the  uncertain- 
ty; and  also  for  that  the  party  might  be  punished  twice  for  the  same 
trespass,  if  hereafter  he  be  indicted  afresh,  and  the  entire  name  of  the 
priest  put  into  the  indictment,  wherefore,  &c.  But  Fineux  and  Rede 
thought  the  indictment  good,  and  the  name  of  the  priest  not  material ; 
for  it  if  had  been,  upon  a  certain  person  unknown,  it  had  been  well 
enough,  as  of  robbery  or  murder  ctrmmitted  on  a  person  unknown. 
And  if  he  "Sniereafter  indicted  for  the  same  trespass  or  felony  where- 
in the  true  name  of  the  party  unknown  is  comprized,  yeLhe  may  aid 
himself  by  an  avermen^JliaLJJi£y__were  one  and  the  same  trespass  or 
felony,  and  not  divers,  aU1ioug1i.Xhey  were  supposed  at  divers  times. 


REX  V. 


(Court  for  Crown  Cases  Reserved,   1822.     Russ.   &  R.   489.) 

The  prisoner  was  indicted  at  the  Old  Bailey  sessions  in  January, 
1832,  by  the  description  of  a  person,  whose  name  was  to  the  jurors 
unknown.  The  offense  with  which  he  w^s  charged  was  that  of  pub- 
lishing a  blasphemous  and  seditious  libel. 

It  appeared  tl^Si,  when  apprehended,  he  refused  to  declare  his  name 
befolT'  I  In  I  iiiiii^i  iliate,  and  the  prosecutors,  noPbeing  able  to  discover 
his  name,  indicted  him  as  a  man  whose  name  was  unknown  to  the 
jurors.  When  called  to  the  bar,  the  indictment  was  read  to  him,  and 
he  then  refused  to  plead,  and  was  remanded.  At  the  following  ses- 
sions, in  the  month  of  February,  the  prisoner  was  again  called  to  the 
bar,  and  by  the  advice  of  his  counsel  put  in  a  demurrer  in  writing  to 
the  indictment.  The  prosecutors  had  time  given  them,  until  the  next 
morning,  to  reply;  but,  before  they  could  do  so,  the  prisoner  by  his 
counsel  moved  the  court  to  be  permitted  to  withdraw  his  demurrer, 
which  was  granted ;  and  being  then  called  on  for  his  plea,  he  pleaded 
not  guilty ;  and,  being  told  that  he  must  plead  by  some  name,  he  re- 
fused to  give  in  any  name.  The  learned  recorder  was  of  opinion  that 
his  plea  could  not  be  received  without  a  name,  and  the  prisoner  was 
again  remanded  for  want  of  a  plea.  At  the  following  sessions  he  was 
again  called  on  to  plead,  and  again  pleaded  not  guilty,  but  refused 
to  put  in  that  plea  by  any  name.     He  was  again  told  that  the  court 


Ch.  10)  thf:  indictment.  147 

could  not  receive  his  plea,  unless  he  would  plead  by  some  name ;  and, 
as  he  persevered  in  his  refusal,  he  was  again  remanded. 

As  this  case  appeared  to  be  without  precedent  and  might  materially 
affect  the  administration  of  justice,  the  learned  recorder  requested  the 
opinion  of  the  judges  upon  the  following  points:  First,  whether  the 
prisoner  could  be  admitted  to  put  a  plea  on  the  record  without  a  name ; 
secondly,  whether  such  a  plea  should  be  treated  as  a  mere  nullity,  and 
the  prisoner  be  remanded  from  time  to  time,  as  in  contempt  for  not 
pleading;  thirdly,  whether  the  refusal  to  plead  by  name  would  en- 
title the  court  to  enter  up  judgment  by  default ;  and,  fourthly,  wheth- 
er in  case  the  prisoner  should  ultimately  plead  by  name,  the  court 
could  proceed  to  try  him  upon  this  indictment  or  should  quash  the 
indictment  as  defective,  and  direct  a  fresh  indictment  to  be  preferred 
against  him  by  the  name  by  which  he  might  plead. 

In  Trinity  term,  1822,  this  case  being  presented  for  consideration, 
some  of  the  learned  judges,  before  whom  it  was__discussed,  suggested 
that  the  prisoner  might  be  indicted  as  a  person  whose  name  was  un- 
known, but  who  was  personally^brougjit  beforethe  jurors  by  the  keeper 
of  the  prison.  An  indictment  was  preferred  accordingly,  and  the  pris- 
oner was  convicted. 


BARNESCIOTTA  v.  PEOPLE. 

(Siipreme  Court  of  New  York,  1877.    10  Hun.  137.) 

Davis,  P.  J.-^  The  plaintiffs  in  error  were  indicted  for  keeping  a 
disorderly  house.  The  plaintiff  in  error  Jojin^Barnesciotta  was  named 
in  the  indictment  by  that  name,  followed  by  the  woj;ds,__l^hcrwise 
called  Garibaldi."  On  being  arraigned,  his  counsel  read  and  filed  the 
following  plea : 

"Now  comes  the  defendant,  John  Barnesciotta,  and  pleads  to  the 
indictment,  that  he  is  not  now,  and  never  was,  known  by  the  name  of 
Garibaldi,  which  he  verifies.  John  Barnesciotta. 

"Sworn  this  25th  day  of  September,  1876. 

"Wm.  F.  Howe,  Commissioner  of  Deeds,  N.  Y." 

The  district  attorney  filprl  a  rlpmnrrpr  to  said  plea,  and  the  said 
plaintiff'  in  error  joined  in  demurrer.  The  court  overruled  the  demur- 
rer, and  gave  judgment  thereon  for  the  people.  The  tk«iurrer  was 
properly  overwtlcd^ — The  true  name  preceded  the  alias  dictus,  and  in 
such  a  case  a  plea  ir^^altatement  will  not  lae-ftH-stained.  Reid  v.  Lord,  4 
Johns.  118.  It  was  quite  immaterial  whether  the  plaintiff  in  error  was 
ever  known  by  the  name  of  Garibaldi,  and  the  indictment  did  not  so 
aver.  If  his  true  name  be  John  Barnesciotta,  as  the  plea  in  abatement 
must  be  taken  to  admit,  then  the  alias  dictus  becomes  wholly  imma- 
terial, and  is  not  capable  of  working  prejudice  to  the  plaintiff  in  error. 

28  Part  of  this  case  is  oiiiitteti. 


148  THE    INDICTMENT.  (Ch.  10 

Besides,  the  plea  was  defective  in  form.  It  does  not  aver  the  true 
name  except  argumentatively,  and  does  not  aver  that  he  is  not  in- 
dicted by  his  true  name ;  and  it  does  not  meet  the  averment  of  the  in- 
dictment, which  is  not  that  the  defendant  was  known  by  the  name  of 
"Garibaldi,"  but  that  "John  Barnesciotta"  was  otherwise  called  "Gari- 
baldi," which  may  be,  and  probably  was,  a  nickname  by  which  he  was 
sometimes  called  by  his  associates.  There  is  no  reason  for  interfer- 
ence with  the  conviction  or  judgment  on  this  ground.  The  demurrer 
was  a  proper  mndp;  nf_^isposing^  of  the  plea  on  the  record.^  Rex  v. 
Clark  alias  Jones,  1  Dr&^^TfsT^*    *    * 

Judgment  and  conviction  affirmed. 


? 


REX  V.  NEWMAN. 

(Court  of  King's  Bench,  1690.     1  I.d.  Raym.  562.) 

The  defendant  was  indicted  by  the  name  of  Elizabeth  Newman  alias 
Judith  Hancock,  for  keeping  a  bawdy  house.  Mr.  King  moved  to 
quash  it,  because  a  woman  cannot  have  twp_  Qiristian  names ;  for 
which  reason  in  a  case  in  Noy  the  return  of  a  rescous  was  qjiashed. 
And  for-this  rcasotutKe  indictment  was  quashed.     *    *     *  -* 


COMMONWEALTH  v.  BUCKLEY. 

(Supreme  Judicial  Court  of  Massachusetts,  Plymouth,  1887.     145  Mass.  ISl, 

JL^..^        .  ''  ""■  ■=•  ^^-^ 

[/  Exceptions    from    superior    court,    Plymouth    county;     Thompson, 

I  Q/c —   .   Judge. 

Indictment  charging  that  the  defendants,  on  a  certain  day,  to  wit, 
at  Brockton,  on  May  1-1,  1887,  "knowingly,  willfully,  and  maliciously 
did  verbally  threaten  to  accuse  one  Frank  E.  White,  of  Brockton, 
aforesaid,  of  having  committed  the  crime  of  burning  a  building  not 
his  own,  to  wit,  the  store  of  John  D.  White,  by  words  then  and  there 
knowingly,  willfully,  and  maliciously  spoken  of  and  to  the  said  Frank 
E.  White,  substantially  as  follows :  'You  [meaning  the  said  Frank  E. 
White]  are  the  man  that  set  the  fire,  and,  unless  you  give  us  one  hun- 
dred dollars,  we  will  make  it  hot  for  you.  We  will  make  a  jail  bird  of 
yo'u' — with  intent  then  and  there  to  extort  money,  to  wit,  the  sum  of 
one  hundred  dollars,  from  him,  the  said  Frank  E.  White,  against  the 
peace,"  etc.  At  the  trial  in  the  superior  court,  it  was  proved,  but  the 
attention  of  the  court  was  not  called  to  the  fact  until  after  the  com- 
mencement of  the  charge,  that  the  namc-joLlhe,  person  referred  to  and 
designated  in  said  indictment  as  Frank  E.  Whije  was  Frank  A^  White, 

2  9  Part  of  this  case  is  omitted. 


Ch.  10)  THE   INDICTMENT.  149 

and  not  Frank  E.  White,  and  there  was  no  evidence  tending  to  show 
that  said  Frank  A.  White  had  ever  been  known  or  called  Frank  E. 
White,  until  so  designated  in  the  indictment ;  and  thereupon  the  de- 
fendants asked  the  court  to  rule  that  there  was  a  variance  between  the 
allegations  in  said  indictment  and  the  proof,  and  that,  by  reason  of 
said  variance,  the  jury  should  return  a  verdict  of  not  guilty.  The  court 
refused  to  so  rule.    *    *    *  so 

Holmes,  J.  The  name  of  the  person  threatened  is  necessary  to  the 
identity  of  the  offense  charged  in  the  indictment,  and  therefore  must 
be  proved  as  set  forth.  Com.  v.  Mehan,  11  Gray,  321.  lL_is_S£ttled 
in  this  commonwealttTTtltt^a  mid-dte  liaine  ui  iuftial  is  part  of  the  name, 
and  a  variance  in  regard  to  it  iG  fatal.  Com.  v.  Perkins,  1  Pick.  388  : 
Com.  V.  Hall,  3  Pick.  262;  Com.  v.  Shearman.  11  Cush.  546.  The 
ruling  that  there  was  no  variance  if  Frank  A.  White  was  the  person 
called  Frank  E.  White  in  the  indictment,  probably  went  upon  the 
ground  that  the  E.  might  be  rejected  as  surplusage,  as  is  held  in  some 
states.^ ^  It  cannot  be  said  as  matter  of  law  that  A.  and  E.  are  the 
same.  There  was  no  evidence  that  the  party  was  ever  called  Frank  E. 
White. 

Exceptions  sustained.^ ^ 

30  Part  of  the  statement  of  facts  is  omitted. 

31  See  State  v.  Manning,  14  Tex.  402  (1855);  O'Connor  v.  State,  97  Ind. 
104  (1884) ;  People  v.  Cook,  14  Barb.  (N.  Y.)  259  (1852).  It  is  held  in  some 
states  that  It  is  not  necessary  to  insert  the  middle  name  or  initial :  but.  If 
inserted,  it  must  be  correctly  stated.  Price  v.  State,  19  Ohio,  423  (1850) ;  State 
V.  Hughes,  1  Swan  (Tenn.)  261  (1851). 

3  2  Accord:   Reg.  v.  James,  2  Cox,  C.  C.  227  (1847).    Cf.  Rex  v. ,  6  Car. 

&  P.  408  (1834). 

The  terms  junior  and  senior  are  no  part  of  the  name,  and  the  omission  or 
insertion  of  either  does  not  render  the  indictment  defective.  Rex  v.  Peace, 
3  B.  &  Aid.  579  (1820) ;  People  v.  Collins,  7  Johns.  (N.  Y.)  549  (1811).  At 
least  where  it  does  not  appear  that  there  are  two  persons  of  the  name,  or 
that  the  party  was  misled.    San  Francisco  v.  Randall,  54  Cal.  408  (1880). 

A  person  may  be  described  either  by  his  baptismal  name  or  by  a  name  by 
which  he  is  commonly  known.  Wilson  v.  State,  69  Ga.  224  (1882) ;  Alexander 
V.  Commonwealth,  105  Pa.  1  (1884). 

Initials. — Some  of  the  earlier  cases  hold  that  an  indictment  is  defective  if, 
instead  of  stating  the  Christian  name  in  full,  it  describes  a  person  by  the 
initials  of  his  Christian  names.  Gardner  v.  State,  4  Ind.  632  (1853),  and  see 
Smith  V.   State,  8  Ohio,  294  (1838). 

Later  cases  hold  that,  if  he  is  known  by  his  initials,  his  name  need  not 
be  more  fully  stated.  State  v.  McMillan,  68  N.  C.  440  (1873) ;  State  v.  Apple- 
ton,  70  Kan.  217,  78  Pac.  445  (1904).  Others  that  the  initials  are  sutliclent 
in  all  cases.    Eaves  v.  State,  113  Ga.  749,  39  S.  E.  31S  (1901). 

The  defendant  must  object  by  a  plea  in  abatement,  in  which  he  states  his 
true  name,  when  the  indictment  states  his  name  incorrectly.  Smith  v.  State, 
8  Ohio,  294  (1838)  ;  State  v.  Brunell.  29  Wis.  435  (1872) ;  Verberg  v.  State, 
137  Ala.  73,  34  South.  848,  97  Am.  St.  Rep.  17  (1902).  The  misstatement  of  the 
name  of  a  third  person,  when  the  name  of  such  person  is  material,  is  a  fatal 
variance  (Collins  v.  State,  43  Tex.  577  [1875]),  unless  it  is  shown  that  the  per- 
son was  also  known  by  the  name  alleged,  in  which  case  the  question  of 
variance  is  for  the  jury  (Commonwealth  v.  Warren,  107  Mass.  53  [1896]),  and 
may  be  taken  advantage  of  by  motion  to  quash  or  demurrer.  But  such  mis- 
nomer is  cured  by  verdict.  State  v.  Rook.  42  Kan.  419,  22  Pac.  626  (1889); 
State  V.  McMillan,  68  N.  C.  440  (1873) ;  State  v.  Rudolph,  3  Hill,  Law  (S.  C.) 
257  (1837). 


150  THE    INDICTMENT.  (Ch.  10 

REGINA  V.  BISS. 
(Court  for  Crown  Cases  Reserved,  1839.    2  Moody.  93.) 

The  prisoner  was  tried  and  convicted  before  Lord  Abinger,  at  the 
Essex  Lent  assizes,  1839. 

That  she  on  the  15th  of  August,  at  the  parish  of  Lutton,  in  the 
county  of  Essex,  on  an  infant  male  child  aged  about  six  weeks,  and 
not  baptized,  feloniously,  willfully,  and  of  her  malice  aforethought, 
did  make  an  assault,  and  that  she  with  her  hands  feloniously,  etc.,  did 
force,  cast,  and  throw  said  male  child  into  a  pond  of  water  there,  by 
means  whereof  said  male  child  in,  by,  and  with  the  waters  of  said 
pond  was  then  and  there  choked,  suffocated,  and  drowned,  of  which 
said  choking,  suffocating,  and  drowning  said  male  child  died ;  and 
that  she  the  said  male  child,  in  manner  and  form  aforesaid,  feloniously, 
willfully,  and  of  her  malice  aforethought  did  kill  and  murder. 

An  objection  was  made  by  Mr.  Dowling,  the  prisoner's  counsel,  that 
the  indictment  neith£j:-.sfett£tLthe  name  of  the  child,  nor  that  the  name 
was  unknowm  to  the  jurors.  ~~""~~-^ 

The  (|nestion  leseived  was  w-hether  that  were  a  good  objection. 

The  case  was  considered  by  all  the  judges  except  Vaughan,  J., 
GuRNEY,  B.,  WiLiviAMS,  J.,  and  Erskine,  J.,  in  Easter  term,  1839, 
and  thev  all  thought  tbf  nhj^^*"'''^"  U^rd.  ^^(^  that  the  judgment  ought 
to  be  arrested.^" 


REX  V.  FOSTER. 

(Court  for  Crown  Cases  Reserved.  1820.     Russ.  &  R.  412.) 

The  prisoner  was  tried  before  Mr.  Baron  Garrow  at  the  Maidstone 
Lent  assizes  in  the  year  1830,  for  committing  an  unnatural  crime  on 
one  Jolm  Whyneard. 

The  person  on  whom  this  crime  was  convicted,  being  called  as  a 
witness,  said  that  his  name  was  spelt  Winyard,  but  it  was  pronounced 
_Wiiiiiyard. 

The  prisoner  was  convicted,  and  received  sentence  of  death,  but  ex- 
ecution was  respited,  in  order  that  the  opinion  of  the  judges  might  be 
taken  on  the  objection  that  the  name  of  the  witness  was  misspelt. 

In  Easter  term^  1820^^ic  judgco  took  this  case  into  consideration, 
and  held  the  cQmd£licux-«g4^t. 

3  3  Compare  Reg,  v.  Hogg,  2  Moo.  &  R.  380  (1841);  Reg.  v.  Willis,  1  Den. 
C.  C.  80  (1845). 


Ch.  10)  THE    INDICTMENT.  151 

REGINA  V.  DAVIS. 
(Court  for  Crown  Cases  Reserved,  1851.    2  Den.  Cr.  Cas.  231.) 

Upon  the  trial  for  a  felony  of  William  Davis,  at  the  Quarter  Ses- 
sions held  at  Dorchester  on  the  31st  of  December,  A.  D.  1850,  it  ap- 
peared that  the  property  alleged  to  be  stolen  was  stated  in  both  counts 
of  the  indictment  (a  copy  of  which  is  hereunto  annexed  as  part  of  the 
case)  to  be  the  propejly-eLLParius  f^!v'i:sf^p^T^^'  A  person  of  the  name 
of  Christopher,  the  prosecutor  of  tlie  charge,  was  called  as  a  witness, 
and,  on  being-  asked  what  was  his  Christian  name,  saidit  was  "Trius." 
It  was  then  objected  by  the  prisoner's  counsel  that  the  property  naTl 
been  laid  in  the  wrong  person.  It  was  answered  that  the  rule  of  law 
as  to  idem  sonans  was  applicable ;  and  that— Xtiii^^and  Darius,  when 
prnnnnnredi  '^onnflprl  ac;  the  same  words.  And  of  this  opinion~w^b  the 
court,  and  overruled  the  objection.  The  trial  then  proceeded,  and  the 
prisoner  was  found  guilty  on  the  second  count.  The  court  did  not 
pass  sentence,  but  reserved  the  question  above  mooted  for  the  opinion 
of  this  court.  The  prisoner  was  discharged  on  recognizance  of  bail 
to  appear  and  receive  judgment  at  the  next  Quarter  Sessions  in  April. 
The  question  for  the  court  is :  Are  the  words  "Trius"  and  "Darius" 
pronounced  so  as  to  produce  the  same  sound?  If  so,  the  conviction  is 
to  stand ;   if  not,  the  prisoner  is  to  be  entitled  to  an  acquittal. 

The  following  addition  was  made  to  the  above  case  by  the  Chair- 
man of  the  Quarter  Sessions : 

This  case  having  been  sent  back  for  the  Chairman  of  Sessions  to 
state  whether  it  was  left  to  the  jury  to  decide  "if  the  two  names  sound 
alike,  so  as  to  designate  the  prosecutor  and  no  one  else,  thereby  dis- 
tinguishing him  from  all  others,  I  beg  to  state,  that  on  my  laying  down 
the  rule  as  to  names  being  idem  sonantia,  and  the  court  being  of  opin- 
ion that  the  names  Darius  (as  pronounced  in  the  Dorset  dialect  D'rius) 
and  Trius  sounded  alike,  the  case  proceeded,  without  its  being  either 
expressly  or  substantially  left  to  the  jury  to  decide  as  to  the  question 
of  the  names  sounding  alike;  but  the  jury  found  their  verdict  on  the 
facts  of  the  case,  and  the  motion  of  counsel  was  in  arrest  of  judgment." 

On  Saturday,  26th  April,  1851,  this  case  (which  had  been  shortly 
argued  by  Ffookes  on  behalf  of  the  prisoner  on  the  8th  of  January) 
was  considered  by  the  judges;  and  The  Court  held  that  the  convic- 
tion must  be  quashed,  as  the  '^'^'""'•'•''■''n  h?d  not  treated  the  question 
respecting  the  similarity  (t^sniind_o^tlie  two  names  as  a  question  of 
fact  for  the  jury,  but  as  one  of  law  which  it  was  for  him  to  determine ; 
and  this  court  could  not  affirm  as  a  matter  of  law  that  the  two  names 
sounded  alike. '^^    *^ 

84  See,  also,  Commonwealth  v.  Warren,  143  Mass.  568,  10  N.  E.  ITS  (1887). 


152  THE    INDICTMENT.  (Ch.  10 

ANONYMOUS. 

(Court  of  King's  Bench,  1G79.     1  Vent.  338.) 

An  indictment  was  quashed  for  want  of  addition.  For  the  court 
said,  no  process  ought  to  go  out  thereupon,  because  the  party  cannot  be 
outlawed. 


ANONYMOUS. 

(Court  of  King's  Bench,  14G9.     Year  Book  9  Edw.  IV,  48.) 

In  the  King's  Bench  a  man  was  indicted  by  this  name  J.  S.  servant 
of  J.  N.  ahas  dicti  Johan.  Huntley  of  Dale,  in  the  county  of  Middle- 
sex, Bocher,  and  because  there  was  not  a  sufficient  addition,  for  serv- 
ant is  not  an  addition,  and  this  word  Bocher  should  be  referred  to  the 
next  person  precedent,  S.  J.  Huntley,  &c.  The  defendant  was  dis- 
missed. 


FUSSE'S  CASE. 

(Court  of  Queen's  Bench,  1.'397.     Cro.  Eliz.  583.) 

An  indictment  was  against  him  by  the  name  of  John  Fuss,  of  Al- 
drington,  alias  dictus  John  Fust,  of  Aldrington,  yeoman,  quod  felonice 
et  burglariter  fregit  domum,  &c.  And  because  there  wanted-lhe  ad- 
dition^of  yeonun  in  th'"  ^rst  "^-■-■^;  -^^Vii^li  was  not  till  after  the  alias 
dictus,  it  was_ruled  to  be  ill.  As  also,  for  that  he  did  not  say  noctanter, 
the  indictment  of  burglary  was  not  good.  Gawdy  said,  it  was  gooH^r 
the  felony.  But  for  the  first  cause  he  was  discharged.  And  it  was 
said,  that  there  were  divers  precedents  in  this  court  accordingly. 


STATE  V.  McDowell. 

(Supreme  Court  of  Indiana,  1841.    6  Blackf.  49.) 

DewEy,  J.  This  was  a  prosecution  against  a  justice  of  the  peace  for 
oppression  under  color  of  his  office.  The  circuit  court  quashed  the 
indictment  on  the  motion  of  the  defendant. 

The  objection  urged  against  the  indictment  is  that  the  defendant  is 
not  described  by  the  addition  of  hfs'TIegree,  or  mystery,  and  place  of 
residence.  ^^    ■ ■ 

By  the  common  law  no  arlrlitinn  ^y^^c^  |-pq)ij,-prl  jp  inrliVtrnpntc  against 
personsnjinder  the  degree  of  a  knight.  1  Chitt.  C.  L.  204.  The  stat- 
ute of  addition?r-l  Hiiii.  V,  l.  "o;  enacts  that  defendants  shall  be  de- 
scribed by  adding  to  their  names  their  estate,  degree,  or  mvsterv.  and 
place  of  residencejn  all  cases  in  which  "the  exigent  shall  be  awarded." 


Ch.  10)  THE   INDICTMENT.  153 

It  has  been  held,  in  the  construction  of  this  statute,  that  in  prosecu- 
tions which  cannot  be  attended  by  the  prDcess-of  outlawry,  the  indict- 
ment need  not  give  the  additioirbt  thTtlefendant.  1  Chitt.  Cr.  L.  206  ; 
Bac,  Abr.  Indictment,  2;  Id.  Misnomer,  2;  Rex  v.  Brough,  1  Wils. 
244 ;  Cro.  Eliz.  148.  The  exigent,  being  a  step  in  the  proceedings  of 
outlawry,  is  unknown  to  our  law. 

It  is,  therefore,  fvifli^nf  thnt  tlif  ^tnt_utc_of  additions,  from  its  own 
terms,  is  not  applicable  to  pros£cuti©ns-4ft4iiis  state ;  and  it  is  equally 
clear  that  the  common  law  does  not  require  the  defendant  to  be  de- 
scribed by  his  addition  mjMf-  indictments. 

The  circuit  court  erred  in  quashing  the  indictment.^' 


IV.  DESCRIPTION,  Ownership,  and  Vai,ue  of  Property 

The  certainte  of  the  name  of  the  person  to  whom  the  offense  is  done, 
is  also  in  most  cases  requisit.  But  yet  if  the  endictment  be  quod  bona 
et  catalla  cuiusdam  hominis  ignoti  felonice  cepit,  or  quendam  ignotum 
felonice  depredavit,  it  is  good,  because  of  the  King's  advantage  of  for- 
feiture thereby.     Fitz.  Endictment,  12. 

You  may  see  an  endictment  (Fitz.  Endict.  9)  quod  A.  verberavit, 
et  XX  Jaccos  prety  &c.  was  thought  sufficient  without  showing  to 
whom  the  Jackes  did  belong:  whereat,  AI.  Stanford  (fol.  95)  marvel- 
cth,  saying  that  hee  saw  no  cause  why  it  should  be  good,  unless  it  were 
for  that  the  matter  could  not  bee  made  more  certaine.  But  peradven- 
ture  certaintie  in  endictments,  was  not  in  those  daies  thought  so  need- 
ful as  now  it  is  holden.     *     *     * 

If  the  endictment  be,  quod  A.  verberavit  B.  and  unum  equum  precy 
XX.  s.  felonice  cepit,  and  doth  not  say,  ipsius  B.  yet  it  is  good  enough. 
30  H.  6,  Fitz.  Endict.  9.  But  if  it  be  qd.  unum  equum  praedict'  J.  cepit, 
and  there  were  no  mention  of  J.  before,  then  it  is  void.     9  E.  4,  1. 

If  the  goods  of  a  man  be  taken  and  he  maketh  executors,  and  dyeth, 
the  endictment  shall  be  bona  testatorius ;  but  if  they  were  taken  after 
his  death,  it  shall  be  bona  testatoris  in  custodia  executorum  existen- 
tia:  ^^  if  the  indictment  be  quod  A.  furatus  est  tunicam  hominis  ig- 
noti quem  invenit  mortuum,  that  is  not  good.     11  R.  2,  Fitz.  Endict. 

35  The  statute  of  additions  has  been  held  to  be  in  force  in  a  few  states. 
See  1  Bish.  New.  Cr.  Prac.  §  674.  Act  14  &  15  Vict.  c.  100,  §  2i,  abolished  the 
necessity  for  the  addition. 

Where  the  addition  of  defendant's  degree,  mystery,  and  residence  Is 
necessary,  the  omission  is  cured  by  pleadinn  to  the  indictment.  Rex  v.  Han- 
nam,  1  Leach.  C.  C.  420  (1787).  And  a  fortiori  by  verdict.  Commonwealth 
V.  Jackson.  1  Grant,  Cas.  (Pa.)  202  (18.5.5). 

3  6  "Or  it  may  be  general  bona  ipsius  A" — the  executoi*.  2  Hale.  P.  C.  181. 
See,  also,  U.  S.  v.  Mason,  2  Cranch.  C.  C.  410,  Fe<l.  Cas.  No.  15.728  (182.-}) ; 
Crockett  v.  State,  5  Tex.  App.  526  (1870).  "A  hog.  the  property  of  a  married 
woman,  living  with  her  husband,  who  has  possession  of  it,  is  not  iueorrectl.v 
described  in  the  indictment  for  stealing  it  as  the  property  of  the  husband." 
Manning,  J.,  in  Lavender  v.  State,  60  Ala.  60  (1877). 


154  THE    INDICTMENT.  (Ch.  10 

15.  *  *  *  If  my  goods  be  taken  by  a  trespassour  and  an  other  taketh 
them  from  him,  the  endictment  shall  be  bona  of  him  which  had  the  last 
possession.=^'  But  if  I  baile  goods  to  one,  from  whom  they  be  robbed, 
then  it  shall  be  bona  of  me  in  his  keeping,  Marr.^^  *  *  *  If  an  en- 
dictment be,  bona  capellae  in  custodia  &c.  or  bona  domus,  or  Ecclesiae 
tempore  vacationis,  it  is  good.     7  E.  4,  14.^" 

The  name  (and  value)  of  the  thing  in  which  the  offence  is  commit- 
ted, ought  also  to  be  comprised  in  the  endictment :  for  an  endictment 
of  the  taking  bona  et  catalla,  whether  it  be  in  trespas  or  felonie,  is 
not  good,  for  the  uncertaintie  what  goods  they  be:  and  if  it  be  of 
dead  things,  it  may  be  bona  et  catalla,  expressing  the  names  thereof 
in  certaintie;  but  if  it  be  of  things  living,  it  shall  not  say,  bona  et 
catalla,  but  equum,  bovem,  ovem,  &c. 

Again  the  value  (or  price)  of  the  thing  is  commonly  to  be  declared 
in  felonie,  to  make  it  appeare  from  petite  larceny.  *  *  *  j^  all  cas- 
es (saith  M.  Marr.)  where  the  number  ought  to  be  expressed  in  the 
endictment,  there  also  it  must  be  said,  prety,  or  ad  valentiam  ;**=!= 
Where  it  is  of  a  live  thing  or  things,  it  must  be  prety :  and  so  of  a 
dead  thing  in  the  singular  number :  but  if  it  be  of  dead  things  in  the 
plural  number,  then  it  must  be  ad  valentiam.  and  not  prety.*"  Againe 
if  it  be  of  a  dead  thing  that  goeth  by  weight  or  measure,  the  forme  is 
to  say  prety  and  not  ad  valentiam. 

If  the  endictment  be  of  taking  away  coine  which  is  not  current, 
it  shall  say  prety:  otherwise  if  it  is  of  money  current,  because  that 
carrieth  his  value  and  price  with  it.  If  it  be  quod  proditore  fecit  gros- 
sos,  vel  denarios,  it  shall  be  ad  valentiam,  and  it  shall  not  say,  20  libras 
in  denarys,  or  in  pecunia  domini  regis,  but  ad  instar  pecuniae  domini 
regis.    Sundry  other  daintie  and  nice  differences  doth  M.  Marr.  make. 

Lambard's  Eirenarcha,  4UG.  ^ 


REX  V.  KETTLE. 

(Chelmsford  Assizes.  1819.     3  Chit.  Cr.  Law  [4th  Ed.]  947a.) 

The  prisoner  was  indicted  for  stealing  "one  bushel  of  oats,  one  bush- 
el of  chaff,  and  one  bushel  of  beans,  of  the  goods  and  chattels  of  A. 
B.,  then  and  there  found,"  and  the  proof  was  that  these  articles,  at 
the  time  of  the  felonious  taking,  were  mixed  together.     BaylEy,  J., 

37  Accord:  King  v.  State,  43  Tex.  351  (1875);  Ward  v.  People,  3  Hill 
(N.  Y.)  395  (1843). 

3  8  Or  the  ownership  may  be  laid  in  the  owner,  or  in  the  bailee.  Kennedy 
V.  State,  31  Fla.  428,  12  Soutli.  858  (1893).  Unless  the  owner  be  the  thief, 
in  w^hich  case  the  ownership  should  be  laid  in  the  bailee.  Adams  v.  State,  45 
N.  J.  Law,  448  (18&3). 

3  9  See  further,  25  Cyc.  96. 

4  0  "But  this  I  take  to  be  hut  clerkshin.  and  not  substantial-"^  2  Hale.  P.  C. 
183.       '  — 


Ch.  10)  THE    INDICTMENT.  155 

held  that  the  articles  ought  to  have  b^fr  ''IvF^ril^'"^  as  mixed,  thus:  "A 
certain  mixture,  consisting,  of  oneJ^usl^^V  etc.,  and  he  directed  an 
acquittal  on  this  account.'*^ 


REX  V.  FORSYTH. 

(Court  for  Crowu  Cases  Reserved,  1814.     Russ.  &  R.  274.) 

The  prisoner  was  tried  before  Air.  Justice  Dallas,  at  the  Lent  as- 
sizes for  the  county  of  Stafford,  in  the  year  1814,  on  an  indictment, 
the  first  count  of  which  stated,  that  the  prisoner  *  *  *  became 
bankrupt,  and  on  28th  of  same  November,  upon  the  petition  of  the 
before  named  persons,  a  commission  of  bankruptcy  was  issued,  and 
that  on  30th  of  same  November,  at  Manchester,  prisoner  was  declared 
a  bankrupt,  and  notice  thereof  left  at  the  dwelling  house  of  prisoner, 
at  Burslem  aforesaid,  *  *  *  ^j-ij  ti^^j-  \^q^  devising  to  cheat  his 
creditors,  did  not  at  any  of  the  said  times,  upon  such  his  examina- 
tion, truly  disclose  and  discover  all  his  estates  and  effects,  as  was  his 
duty  so  to  do,  but,  on  the  contrary  thereof,  then  and  there  did  con- 
ceal and  kept  secret  a  bed,  six  tables,  etc.  (enumerating  many  articles), 
and  "one  hundred  other  articles  of  household  furniture,  and  a  certain 
debt  due  from  one  John  Taylor  to  the  said  prisoner  to  the  value  of 
twenty  pounds  and  upwards."  *2    *     *    * 

The  following  objections  were  then  taken  to  the  indictment ;    *    *    * 
Thirdly.  That  the  householdfui^utiir^i  ^'^  ^''^^^  as  the  debt  conceal- 
ed, etc.,  were  not  stated  in  tVi.OV|rl"iV7rnP|-||-  .witi-i  ciif^^iV^ii-  certainty,  the 
former  being,  "and  one  hundred,  otherarticles  of  household  furniture," 

and  the  latter,  "a  certain  debt  due  from~~dTie  A.  B.  to  the  said  prison- 
gj- "    *     *     *  — —- — ^ 

In  Easter  term,  7th  May,  1814,  all  the  judges  met  (except  Dampier, 
J.,  who  was  absent)  and  ii^iri  tWe^  i|^^]j|>[i-.-i,=^pt  bnr1_2Ii  the  ground  of 
the  property  concealed  not  being  all  specified,  and  no  distinct  value 
having  been  put  upon  the  articles  enumerated.    *    *    *  *^ 

41  "I  doubt  the  propriety  of  that  decisiou  [Rex  v.  Kettle].  I  cannot  help 
thinking  that,  if  a  man  steal  wine  and  water,  he  may  be  charged  with  stealing 
wine.  The  above  principle  would  doubtless  hold  good,  where  the  mixture  was 
such  as  to  produce  a  chemical  change  in  the  articles."  Alderson,  B.,  in  Reg.  v. 
Bond,  4  Cox,  C.  C.  234  (18.j0). 

4  2  Part  of  this  case  is  omitted. 

43  "Upon  an  indictment  for  stealing  printed  books,  as  it  has  been  observed 
by  my  Lord,  it  is  not  necessary  to  do  more  than  to  name  so  many  printed 
books."     Bayley,  J.,  in  Rex  v.  Johnson,  3  Maxile  &  S.  H.jo  (1815). 

"An  averment  that  the  defendant  conveyed  a  certain  parcel  of  land  in  the 
city  of  Salem,  without  any  other  terms  of  description,  is  bad  for  uncer- 
tainty. *  *  »  Tiie  defendant  may  have  owned  other  parcels  of  land  in  the 
city  of  Salem,  which  he  conveyed  to  the  prosecutor  on  the  day  alleged."  Bige- 
low,  J.,  in  Commonwealth  v.  Brown,  15  Gray  (Mass.)  190  (18G0).  See,  also, 
State  V.  Malloy,  34  N.  J.  Law,  410  (1871). 


156  THE   INDICTMENT.  (Ch.  10 

STATE  V.  BASSETT. 

(Supreme  Court  of  Louisiana,  1882.     34  La.  Ann.  1108.) 

Bermudez,  C.  J.*^  The  defendant  was  convicted  of  larceny  and 
sentenced  to  hard  labor. 

On  appeal  he  complains,  as  he  did  in  the  lower  court ;  *  *  *  That 
he  could  not  be  convicted  of  stealino-  hens,  when  the  charge  was  of 
stealing  chickens,  and  that  it  was  not  proved  that  the  chickens  were 
Cnrhin  China.  hiiJ-B44ff-€eehm  chickens.     *     *     * 

The  district  judge  has  well  answered  all  the  objections  urged  by  the 
defendant.  He  says:  ''The  degixiption  of  4he  stolen  property  is  two 
Cochin  Chin^chickens,  of  the  value  of,"  etc. 

In  2  Bishop's  Cr.  Pr.  §  700,  it  is  held  that  such  description  of  the 
thing  stolen  as  the  following  is  good  and  sufficient,  viz. :  "One  sheep," 
"a.  horse,"  "a  certain  mare,"  "one  cow,"  "one  watch,"  "one  certain 
hog."  In  State  v.  Carter,  33  La.  Ann.  1214,  where  the  description  was 
"one  hog,"  it  was  held  to  be  good,  and  a  number  of  authorities  cited 
in  support.  See,  also.  State  v.  Everage,  33  La.  Ann,  122 ;  State  v. 
King,  31  La.  Ann.  179. 

In  State  v.  Thomas,  30  La.  Ann.  600,  the  property  was  described  as 
"one  small  hog."  It  was  urged  that  indictment  was  insufficient,  in 
not  describing  the  animal  by  any  mark,  or  by  its  color  and  sex.  So. 
in  the  case  at  bar,  it  was  urged  that  the  color,  condition  and  sex  of 
the  chickens  ought  to  have  been  alleged.  But  if  the  description,  such 
as  "one  hog,"  is  sufficient,  without  mention  of  the  color,  sex,  condi- 
tion, flesh  marks,  or  ear  marks,  as  was  held  in  State  v.  Carter,  33  La. 
Ann.  1214,  what  reason  exists  for  a  more  particular  description  when 
chickens  are  the  subject  of  larceny?  Chickens  are  designated  accord- 
ing to  sex  and  age,  as  chicks,  pullets,  cockrills,  hens  and  roosters. 
Hogs  are  also  known  as  pigs,  shoats,  barrows,  sows  "and  boars.  If 
an  indictment  charging  the  larceny  'of  "one  hog,"  or  of  "one  small 
hog,"  is  sustained  by  proof  that  the  property  stolen  was  either  a  boar, 
a  barrow,  a  sow,  certainly  an  indictment  charging  the  larceny  of  a 
chicken  is  good,  and  evidence  is  admissible,  whether  the  chickens  stolen 
were  hens,  roosters  or  pullets. 

The  state  is  bound  to  allege  and  prove  every  fact  or  ingredient  nec- 
essary to  constitute  the  crime  charged.  The  converse  must  be  equalh- 
true.  If  it  jsjinneceEaaxj:.^  aver  the  color^mnrln  or  "p--  of  a  hog  or 
chicken  charged  to  have^^bgen  stoleiy^then  it  is  unnecessary  to  prove 
eith£i_al.those  facts.    -'''    *    * 

Judgment  affirmed. *•* 

4  5  Part  of  this  case  is  omitted. 

46  See,  also.  State  v.  Stelly,  48  La.  Ann.  1478,  21  South.  89  (1890). 

In  Rex  V.  Douglass,  1  Camp.  212  (1808),  Lord  Ellenborough  was  of  opinion 
that  where  a  statute  enumerated  several  articles,  as  baskets  and  parcels,  an 
indictment  under  the  statute  must  describe  the  article  by  its  specific,  not  its 
generic,  name.     This  doctrine  was  followed  in  Rex  v.  Loom,  1  Moody,  C.  C. 


(jll.  10)  THE    INDICTMENT.  157 

PEOPLE  V.  BOGART. 
(Supreme  Court  of  California,  1868.     36  Cal.  245.) 

The  indictment  charged  the  defendant  with  having  stolen  sundry 
gold  coins,  laiiii«i-4H©ae^Liif_tlie  United  States,  of  the  aggregate  value 
of  three  hundred  and  fifty  dollars,  and  averred  that  the  grand  jury 
could  not  give  a  more  particular  description,  as  they  had  no  means 
of  knowledge.  It  also  rharoed  that  the  gold  coinsjvere  the  property 
of  "^A^p11<;,  ^garw.  K(  Co.,"  without  giving  the  naivies-Qt-th^  firm,  or 
averring  fHaP^^s,  Fargo  &  Co.''  was  a  partnership  or  a  corpora- 
tion.   *    *    * 

Sanderson,  J.*^  The  general  rule  undoubtedly  is  that  the  stolen 
property,  if  money,  should  be  described  as  so  many  pieces  of  current 
gold  or  silver  coin,  specifying  the  species  of  coin;  but,  if  the  species 
of  coin  be  unknown  to  the  grand  jury,  they  may  so  state,  in  lieu  of 
such  •  specification.  In  this  respecLiJl£Ljawdoes  not  require  greater 
certainty  than  the  natiirejiiJiiiLcase^affonTs?^*"-* — *--^* 

In  another  respect,  Rowever,  the  nidictment  is  bad.  The  ownership 
of  the  money  is  laid  in  "Wells^JIaJLgCLiL.Ca/'  without  any  specifica- 
tion of  the  copartners,  if  i>  i^  a  partnership.  ~dr  any  allegation  that 
"Wells,  Fargo  &  Co."  is  a^^eqjuiaiiun,  4F-^ich  is  the  case.  At  com- 
mon law,  if  the  stolen  goods  are  the  property  of  partners,  or  joint 
owners,  the  names  of  all  the  partners,  or  joint  owners,  must  be  stated. 
Commonwealth  v.  Trimmer,  1  Mass.  476;  Hogg  v.  State,  3  Blackf. 
(Ind.)  326;  State  v.  Owens,  10  Rich.  Law  (S.  C.)  169.  To  avoid 
this  difficulty,  the  statute  of  7  Geo.  IV,  c.  64,  §  14,  was  passed,  which 
provided  that  where  the  stolen  goods  were  the  property  of  partners, 
joint  tenants,  parceners,  or  tenants  in  common,  it  should  be  sufficient 
to  charge  the  property  in  one  of  them  by  name,  and  another  or  others, 
according  to  the  fact;  but  we  have  no  such  statute  in  this  state. 
Hence,  if  "Wells,  Far.gD&Co."  is  the  name  or  style  of  a  firm  or  co- 
partnership, the  namesorHit^  ijevtfial  pcisuiis  vvliu  compose  the  firm 
should  have  been  stated.  If,  howeverr**Wells,  Fargo  &  Co."  is  the 
name  of  a  corporation,  ttTe"  mdiGtmeot^^uld  have  been  good,  had  it 
contained  an  allegation  to  that  effect.  2  Russ.  on  Crimes,  99 ;  People 
V.  Schwartz,  32  Cal.  IGO.     ^=     *     * 

Judgment  reversed,  and  cause  remanded  for  further  proceedings, 
and  remittur  directed  to  issue  forthwith. 

160  (1827),  where  it  was  held  that  an  indictment  for  stealing  sheep  would 
not  support  a  conviction  for  stealing  lambs,  and  in  Rex  v.  Puddifoot.  i  Mnodv. 
C.  C.  247  (1821)).  where  it  was  held  that  on  a  similar  indictment  one  could  not 
be  convicted  of  stealing  a  ewe.  Tliese  cases,  and  similar  cases,  seem  to  be 
overruled  by  Keg.  v.  Spicer,  1  Den.  C.  C.  82  (1&45). 

<7  Part  of  this  c-ase  is  omitted. 

48  Compare  Reg.  v.  Rond.  1  Den.  C.  C.  517  (184f)).  In  many  jurisdictions 
it  is  held  to  be  unnecessary  to  state  the  species,  number,  or  denominations 
of  the  money  stolen.  Commonwealth  v.  Stebhins.  8  Gray  (Mass.)  402  (18.">7) ; 
State  V.  Palmer,  20  Wash.  207,  M  Pac.  1121  (1808),  by  statute. 


158  THE    INDICTMENT.  (Ch.  10 

v.  Averment  of  Words  and  Writings 
LLOYD'S  CASE. 

(Court  for  Crown  Cases  Reserved,  1767.     2  East,  P.  C.  1122.) 

In  Lloyd's  case,  who  was  tried  by  Mr.  Justice  Yates,  the  indictment 
only  followed  the  words  of  the  Black  Act  (9  Geo.  I,  c.  22),  and  charg- 
ed that  the  prisoner  "knowingly,  unlawfully,  wickedly  and  feloniously, 
did  send  a  certain  letter  in  writing-,  without  any  name  subscribed  and 
signed  thereto,  directe3~to~one  Edward  Salway,~l)y  the  name  of  Ed- 
ward Salway,  Esq.,  demanding:  money,  tojwit^  100  guineas,  etc.,  to  the 
great  damage  of  the-.said__E.  S.  and  against  the  form  of  the  statute," 
etc.  After  conviction,  it  was  moved  in  arrest  of  judgment,  that  the 
indictment  was  bad  in  two  respects.*®  *  *  *  Secondly.  Because 
neither  the  letter  nor  even  the  substance  of  it  was  set  forth  in  the  in- 
dictmetTtT  The  Icaincd  JLldgL,  in  reporting  the  case  afterwards  to  the 
rest  of  the  judges,  observed:  The  second  objection  seemed  to  him  a 
very  strong  one;  and  therefore  he  respited  judgment  for  the  opinion 
of  the  judges  upon  it.  It  was  argued  for  the  prosecutor  that  this  in- 
dictment pursued  the  very  words  of  the  statute  9  Geo.  I,  c.  22,  which 
in  general  cases  was  holden  to  be  sufficient.  That  the  defendant  was 
charged  with  sending  this  letter  "feloniously  and  contrary  to  the  form 
of  the  statute,"  and  that  those  words  import  that  the  letter  was  of  such 
a  nature  as  the  statute  had  in  view.  That  the  jury  had  found  the  de- 
fendant guilty  to  the  whole  extent  of  that  charge,  and  therefore  it  must 
be  taken  that  the  letter  which  was  proved  to  the  jury,  and  upon  which 
their  verdict  was  founded,  was  a  menacing  letter,  and  within  the  true 
meaning  of  the  statute.  That  if  it  were  not  such  a  letter  it  was  to  be 
presumed  that  the  prisoner  would  have  been  acquitted,  as  all  these 
trials  were  superintended  by  a  judge  who  must  be  supposed  to  give 
proper  directions  to  the  jury.  In  answer,  it  was  admitted  that  in  gen- 
eral cases,  if  an  indictment  on  a  statute  pursued  the  words  of  the  stat- 
ute itself,  it  was  sufficient;  but  those  were  cases  where  the  words  of 
the  statute  contained  a  complete  description  of  the  offense.  But  when 
the  statute  related  to  a  particular  kind  of  letter,  the  indictment  should 
state  the  letter  itself,  that  the  court  might  see  whether  it  were  one  of 
that  kind.  That  in  every  indictment  a  complete  offense  must  be  shown, 
so  as  to  enable  the  court  to  give  judgment  upon  it  in  case  a  demurrer 
were  joined  or  a  writ  of  error  brought.  But  if  the  words  "feloni- 
ously" and  "contrary  to  the  statute"  should  be  deemed  sufficient,  it 
would  leave  the  construction  of  the  law  to  the  jury.  That  in  all  in- 
dictments of  forgery  the  instrument  forged  must  be  set  forth,  that  the 
court  might  see  that  it  was  one  of  that  kind  which  fell  within  the  pur- 

<9  Part  of  this  case  is  omitted. 


Ch.  10)  THE    INDICTMENT.  159 

view  of  the  statute. '°  Mr.  Justice  Yates  further  stated,  that  he  had 
since  caused  inquiries  to  be  made  into  the  practice  of  the  Old  Bailey, 
and  upon  the  Western  and  Home  circuits,  and  found  that  in  all  indict- 
ments upon  this  act  of  Parliament  the  letter  itself  was  generally  set 
forth.  And  that  ^  r\nr\^^  rliVI  gnt  remember  an  instance  where  the 
indictment  did  not  state  at  least  the  substance  of  the  letter.  In  Trin- 
ity term  following-  the  judges  were  consulted  on  this  case;  and  they 
were  of  opinion  that  the  indictmeitt'  wn*!  h7\f\  \u  not  setting  forth  the 
letter  itself.  For  if  the  words  "feloniously  and  contrary  to  the  form 
of  the  s\atute"  were  allowed  to  supply  the  place  of  the  letter,  it  would 
be  leaving  it  to  the  prosecutor  to  put  his  own  interpretation  upon  it, 
and  to  the  jury  the  construction  of  the  matter  of  law."^ 


REGINA  V.  DRAKE. 
(Court  of  Queen's  Bench,  1706.    2  Salk.  001.) 

Information  for  that  the  defendant,  being  evilly  disposed  to  the 
government,  did  make  a  libel,  in  which  libel  were  contained  divers 
scandalous  matters  secundum  tenorem  sequent.,  and  in  setting  out  a 
sentence  of  the  libel,  it  was  recited  with  the  word  nor  instead  of  not ; 
but  note,  the  sense  was  not  altered  thereby.  The  defendant  pleaded  not 
guilty ;   and  this  appeared  upon  evidence,  a  special  verdict  was  found. 

Et  Per  Curiam.  1st.  Cujus  quidem  tenor  imports  a  true  copy. 
Vide  Reg.  169;  8  Co.  78;  Co.  Ent.  508;  2  Saund.  121,  in  hac  quae 
sequitur  forma;  5  Co.  53,  tenor  is  a  transcript,  and  implies  the  very 
same. 

2dly.  They  held  that  this  was  not  a  tenor,  by  reason  of  this  vari- 
ance; for  not  and  nor  are  different — different  in  grammar  and  differ- 
so  Accord:  Perjury.  Rex  v.  Beach,  1  Cowp.  220  (1774).  Libel,  ^tate  v. 
Jay,  34  N.  J.  Law,  308  (1871). 

51  "It  is  undoubtedly  a  rule  that  an  indictment  for  any  offense  nnist  show 
that  the  offense  has  been  committed,  and  must  show  how  it  has  been  com- 
mitted. *  *  *  In  some  instances,  words  are  the  subject-matter  of  an  in- 
dictment; and  it  follows  from  this  principle,  which  I  have  mentioned,  that 
whenever  the  offense  consists  7Tf~\\-oras  wntren  or  spoken,  those  words  must 
be  stated  in  the  indictment."  BramWell.  br-J.,  in  Bradlanf,'h  v.  lies;..  3  Q.  B. 
D.  615,  616  (1878).  ~"  ~^ 

"There  ai"e  cases  which  will  form  just  and  necessary  exceptions  to  this  rule ; 
as  where  the  forgetl  insfrnmpnt  hMs  been  destroyed  by  the  prisoner,  or  has 
remained  in  his  pt^session.  and  TJerhaos  in  otngr  cases,  where  the  instrument 
cannot  be  pyruiiir^oTji^TvHjj^flg^  "'^  imcMps  on  tne  piu-t  of  the  government  or 
prosecutor.  But  in  every  such  instance,  that  the  exception  may  be  admitted, 
it  nuist  appear  in  the  indictment  what  is  the  cause  of  the  nondescription  of 
the  instrument."  Setlgwick,  J.,  in  Commonwealth  v.  Houghton,  8  Mass.  110 
(1811). 

"If  the  paper  is  of  a  fharn^'tpT-  to  offend  decency,  and  outrage  modesty,  it 
need  not  be  so  spread  upon  the  record  as  to  produce  that  effect."  Kcdfield. 
C.  J.,  in  State  v.  Brown,  '2TTt.  620  (1855). 


160  THE    INDICTMENT.  (Ch.  10 

ent  in  sense.  And  Powys,  J.,  held  as  to  the  point  where  Uteral  omis- 
sions, etc.,  would  be  fatal,  that  where  a  letter  omitted  or  changed 
makes  another  word,  it  is  a  fatal  variance ;  otherwise  where  the  word 
continues  the  same.  And  in  the  principal  case,  no  man  would  swear 
this  to  be  a  true  copy." 


STATE  V.  MARLIER. 

(Kansas  City  Court  of  Appeals,  Missouri,  1891.    46  Mo.  App.  233.) 

Ellison,  J.  This  is  a  prosecution  by  indictment  for  slander,  under 
section  3868,  Rev.  St.  1889.=^^     *     *     * 

The  defendants  are  Belgians,  and  it  appears  that  the  words  were 
spoken  in  the  French  language  in  the  presence  and  hearing  of  Belgians. 
The  cause  was  tried  by  the  aid  of  an  interpreter.  The  indictment  sets 
out  the  words  in  the  English  languag;-e,  and  omits  to  set  them  out  in 

the  language  in  which  tlTev__were   uttered Xhi*— w«e— wtong.      The 

words  should  be  charged  as  spoken,  and  in  the  tongue  spoken.  They 
should  then  be  followed 'by  a  proper  Iranslation.  Zennobis  v.  Axtel, 
6  T.  R.  162;  Wormoth  v.  Cramer,  3  Wend.  394;  Kerschbaugher  v. 
Slusser,  12  Ind.  453;  Hickley  v.  Grosjean,  6  Blackf.  (Ind.)  351; 
Odger's  Libel  &'' Slan.  109,  110,  470;  Newell  on  Defamation,  Slander 
&  Libel,  277,  637.  And  in  this  respect  there  is  no  difference  between 
a  civil  and  criminal  prosecution.  Cook  v.  Cox,  3  M.  &  S.  110.  The 
motion  in  arrest  should  have  been  sustained.  We  will,  therefore,  re- 
verse the  judgment  and  discharge  defendants.    All  concur.^* 

52  Cf.  Commonwealth  v.  Gillespie,  7  Serg.  &  R,  (Pa.)  469,  10  Am.  Dec.  475 
(1822) ;    Rex  v.  Wright,  1  Lewin,  236  (1828). 

5  3  Part   of  this  case   is   omitted. 

54  See,  also.  Rex  v.  Goldstern,  Russ.  &  Ry.  473  (1822) ;  People  v.  Ah  Sum. 
92  Cal.  648,  28  Pac.  680  (1892). 

"The  recital  of  the  instrtmient  is  usually  prefaced  by  the  words  'to  the  tenor 
following,  that  is  to  say,'  or  'in  the  words  and  figiu'es  following,'  which  im- 
ports an  exact  copy.  But  it  has  been  holden  that  the  words  'as  follows'  are 
sufficient ;  that  they  intend  the  same,  and  profess  the  same  exactness."  Chit- 
ty  Cr.  L.  vol.  3.  1040.  _____ 

The  statute  of  23  Geo.  II,  c.  11,  made  it  uunuoea.sai'y  111  ihdictlDents  for  per- 
jury to  set  out  the  false  statement  according  to  it&-4entrr.  See  Bradlaugh  v. 
Reg.,  3  Q.  B.  D.  617  (ISSTJ!  Similar  statutes  have  been  enacted  in  the  United 
States.  U.  S.  v.  Walsh  (O.  C.)  22  Fed.  644  (18M) ;  State  v.  Groves,  44  N.  C. 
402  (1853).  A  common  statute  in  the  United  States  likewise  abolishes  the  com- 
mon-law rule  requiring,  in  indictments  for  forgery,  that  the  writing  be  set 
out  verbatim.  State  v.  Childers,  32  Or.  119,  49  Pac.  801  (1897) ;  Bostick  v. 
State,  34  Ala.  266  (1859) ;    State  v.  Pullens,  81  Mo.  387  (1884). 


Ch.  10)  THE    INDICTMENT.  161 

VI.  Averment  oe  the  Degree  op  Dependant's  Connection  with 

THE  Offense 

SANSON  V.  OSSLEY. 

(Court  of  King's  Bench,  lOSG-87.     3  Mod.  121.) 

An  appgul  of  murder  was  tried  in  Cambridgeshire  against  three  per- 
sons, and  the  count  was,  thatj])ssley  gq.snnlted  the  husband  of  the  ap- 
pellant and  wounded  him,  in  Huntingdonshire,  of  which  wound  he 
languished  and  died  in  Cambridgeshire,  and  that  Lippon  and  Martin 
were  assisting.  ' 

The  jury  found  a  special  verdict,  in  which  the  fact  appeared  to  be, 
that  Lfippon  gave  the  wound,  and  that  M.n|-tin  and  Ossley  were  assist- 
ing. 

The  first  exception  to  this  verdict  was :  That  the  count  and  the  mat- 
ter therein  alleged  must  be  certain,  and  so  likewise  must  the  verdict, 
otherwise  no  judgment  can  be  given;  but  here  the  verdict  finding  that 
another  person  gave  the  stroke,  and  not  that  person  against  whom  the 
appellant   had   declared,   it   is   directly   against   her   own   showing.^^ 

The  Court  answered  tn  tlip  fi|-,<^t  pvnppfi'nn^  t^^t  i<-  wnn  r.f  no  force, 
and  that  the  same  objection  may  be  made  to  an  indictment,  where  in 
an  indictment  if  one  gives  the  stroke  and  another  is  abetting,  they  are 
•both  principally  and  equally  guilty;  and  an  indictment  ought  to  be  as 
certain  as  a  count  in  anappeal.     *     *     * 


HATCHETT  v.  COMMONWEALTH. 

(Court  of  Appeals  of  Virginia,  1882.     7.5  Va.  92.5.) 

Anderson,  J.,  delivered  the  opinion  of  the  court. ^^ 

The  prisoner,  Littleton  Hatchett,  was  indicted  jointly  with  Oliver 
Hatchett  and  Henry  Carroll ;  Oliver  Hatchett  for  the  willful  and  ma- 
licious murder  of  Moses  Young  by  poison,  Henry  Carroll  and  Little- 
ton Hatchett,  the  prisoner,  as  accessories  before  the  fact.  It  is  stated 
in  the  petition  that  Carroll  has  been  tried  and  acquitted.  Oliver,  who 
is  charged  as  principal,  had  not  been  tried,  but  was  still  under  arrest. 

The  court  is  of  opinion  that  the  evidence  is  insufficient  to  connect 
Oliver  Hatchett,  who  is  charged  as  principal  with  the  perpetration  of 
this  crime,  to  warrant  the  conviction  of  the  prisoner  as  an  accessory 
before  the  fact. 

At  common  law  the  accessory  could  not  be  tried  until  the  principal 
had  been  convicted  by  the  verdict  of  a  jury  (or  outlawed),  and  the 


6s  Part  of  this  case  is  omitted. 
Mik.Cr.Pb.— 11 


162  THE    INDICTMENT.  (Ch.  10 

only  evidence  which  was  admissible  to  prove  the  principal's  guilt,  was 
the  record  of  his  conviction  by  the  verdict  of  a  jury  in  a  court  of  com- 
petent jurisdiction.  In  England,  and  some  of  the  American  states,  the 
common-law  rule  has  been  subverted  by  statute,  which  provides  that 
an  accessory  before  the  fact  to  a  felony  "may  be  indicted,  tried,  con- 
victed and  punished,  in  all  respects  as  if  he  were  a  principal  felon." 
Our  statute  does  not  go  so  far.  It  provides  (Acts  of  Assembly  18T7, 
p.  312,  c.  10,  §  7)  that  "in  the  case  of  every  felon,  every  principal  in 
the  second  degree,  and  every  accessory  before  the  fact,  shall  be  pun- 
ished as  if  he  were  the  principal  in  the  first  degree" ;  and  by  section 
9,  an  accessory,  either  before  or  after  the  fact,  may,  whether  the  prin- 
cipal felon  be  convicted  or  not,  or  be  amenable  to  justice  or  not,  be  in- 
dicted, convicted  and  punished,  and  an  accessory  before  the  fact  may 
be  indicted  either  with  the  principal  or  separately.  These  provisions 
are  the  same  in  the  Code.  It  does  not  provide,  as  the  Pennsylvania 
statute  does,  which  is  substantially  a  copy  of  the  EngHsh  statute,  that 
he  is  to  be  indicted,  tried  and  convicted  in  all  respects  as  if  he  were  the 
principal  in  the  first  degree. 

It  is  implied  by  the  ^'irginia  statute  that  he  must  be  indicted,  tried 
and  convicted  as  an  accessory  before  the  fact,  though  he  shall  be  pun- 
ished as  if  he  were  the  principal  in  the  first  degree.  He  may  be  in- 
dicted, convicted  and  punished,  whether  accessory  before  or  after  the 
fact,  by  express  terms  of  the  statute ;  but  it  is  as  accessory,  whether 
the  principal  felon  has  been  convicted  or  not,  and  the  accessory  before 
the  fact  may  be  indicted  either  with  the  principal  or  separately,  of 
course,  as  accessory.  He  could  only  be  indicted  under  this  statute  as 
accessory.  It  gives  no  authority  to  indict  him  as  principal.  Accord- 
ingly in  Thornton's  Case,  24  Grat.  669,  670,  it  was  held  by  this  court 
that  "our  statute  has  not  gone  far  enough  to  make  an  accessory  before 
the  fact  to  a  felony  liable  to  be  convicted  on  an  indictment  against  him 
as  principal."  Upon  this  view  of  the  statute  the  coji^l'ig^'on  4"  obvious 
that  an  accessory  to  a  felony  camiot  be  prosecutf^rl  fnr  -a  .snhstantive 
off-^nsfij^yt  onIy~as  an  accessory  to  the  crimp  pprppi-mi-prl-Ky  the  prin- 
cipal felon,  and  in  order  to  his  conviction.  alth^n;7h  it  is  -n^t  necessary 
now  to  show  that  the  nrincipal  felon  has  been  convicted,  it  is  necessary 
to  show  that  the  substantive_Qf[eus£,^£_v\'hich  he  is  charged  as  having 
been  accessory,  has  been  committed  by  the  principal  felon. 

The  court  is  of  opinion  that  the  evidence  is  clearly  insufficient  to 
convict  Qliver_Hatchett,  as  principal,  with  administering  the  poi- 
son.   *    *    * 

The  court  is  of  opinion  that  the  evidence  is  plainly  insufficient  to 
convict  Oliver  Hatchett,  who  is  indicted  as  principal  with  the  killing, 
or  to  show  that  he  was  guilty  of  administering  the  poison.     *     *     * 

Judgment  reversed.^® 

56  Bj-  statute  in  England  (11  &  12  Vict.  c.  46),  and  in  many  of  our  states,  the 
distinction  between  principals  and  accessories  has  been  abolished.     Some  of 


Ch.  10)  THE    INDICTMENT.  163 

I 

REX  V.  THOMPSON. 

(Court  of  Kings  Bench,  1G7G.     2  Lev.  208.) 

Error  on  a  judgment  on  an  indictment  alleging  that  the  defendant 
knowingly  rereived  and  hat-1)Qj:ed_c[ivers  tTiievcs  to  the  jury  unknown, 
that  had  stolen  divers  goods,  and  committed  divers  burglaries.  Ex- 
ception. 1.  That  this  is  too  general,  and  not  more  than  alleging  that 
one  is  a  common  receiver  of  felons ;  and  cited  Co.  3  Inst.  12,  13,  in- 
dictment for  using  divers  diabolical  arts,  Rolls,  Indictment,  79,  com- 
mon oppressor  of  the  neighborhood.  These  are  bad,  but  common  bar- 
retor  is  good  because  that  term  is  well  known.  2.  Scienter  recepit,  is 
not  good,  but  it  ought  to  be  that  he  knowing  them  to  be  thieves,  re- 
ceived them,  for  he  could  know  the  persons  and  not  know  that  they 
were  thieves.  1  Cro.  Bolton  v.  Banks,  &  Ibid.  Kirmion  v.  Wells.  3. 
It  ought  to  be  that  he  feloniously  received  felonice  recepit,  for  receipt 
of  felons  and  harboring  them  knowing  it  is  felony. 

But  it  was  not  allowed,  for,  by  the  count  1,  perchance  the  felons 
could  be  particularly  known  no  more  than  the  felonies  and  burglaries. 
And  a  hoKse  that  h.qrbors_felorLS  is  a  commnn  nuisance  as  is  a  common 
bawdv  house!  And  as'tcT^^  Jones  said  that  scienter  had  been  lately 
ruled  good  in  one  Sallie's  Case.  And  as  to  3,  the  king  may  if  he  please 
w^aive  the  felony  and  indict  for  trespass.  Upon  which  the  judgment 
was  affirmed.^' 


SECTION  2.— JOINDER  OF  DEFENDANTS 


ANONYMOUS. 

(Upper  Bench,  16-19.     Style,  1.57.) 

The  court  was  moved  to  quash  divers  Endictments  against  the  In- 
habitants of  the  Parishes  of  Shoreditch  and  Hackney  in  Middlesex, 
for  not  repairing  the  High  ways.     The  exception  taken  was,  that  the 

those  statutes  specifically  provide  that  the  accessory  may  be  indicted  as  a 
I)riiuiiial.  See  Campbell  v.  Commonwealth,  84  Pa.  187  (1877);  People  v. 
Davidson.  .5  Cal.  133  (IS.Jo). 

5T  "It  devolves  on  the  commonwealth  to  show  the  ffiiilt  of  the  principal 
felon  liefore  a  conviction  of  the  accessory  can  be  had ;  therefore  it  is  necessary 
that  an  indictment  a.cainst  an  accessory  shall  contain  such  allegation  as  to  the 
couiniission  of  the  crime  and  the  guilt  of  the  principal  as  would  make  it  a 
good  indictment  against  the  principal ;  and  these  statements  are  indispensable 
to  the  validity  of  an  indictment,  whether  .ioint  or  several."  Pryor,  J.,  in 
Tully  V.  Commonwealth,  11  Bush  (Ky.)  LIS  (1S74). 

"It  is  in  no  case  necessary  to  set  forth  the  means  by  which  the  accessory 
before  the  fact  incitetl  the  principal  to  commit  the  felony,  or  the  accessory 
after  received,  concealed  or  comforted  him."  Fogler,  J.,  in  State  v.  Neddo,  92 
Me.  77,  42  Atl.  2.j5  (1898). 


164  THE    INDICTMENT.  (Ch.  10 

Parishes  are  jointly  _££tdictod.  wH^reas  their  offences  are  several,  and 
also  not  equal,  and  vet  both  fined  alike.  Thi;  'Got»*-^uashed  the  En- 
dictment,  and  discharged  the  issues  which  were  not  retorned,  but  not 
tho'sethat  were  retorned. 


REX  V.  PHILIPS. 
(Court  of  King's  Bench,  1731.     2  Strange,  921.) 

.9iY  ppr5;ops  were  indicted  ^'"  '^"p  i|-|f1iV±u»(^«4J^fof  r^''i^^n'i  and  four 
of  them  pleading  were  convicted.  It  was  then  moved,  in  arrest  of 
judgment,  that-efttnes  ("esfiecia.llv  perjurv)  were  in  their  nature  several, 
and  two  cannot  be  indicted  together.  And  Palm.  535.  6  Mod.  210. 
2  Roll.  Abr.  81,  pi.  6,  7.  "Salk.  382.  Pas.  11  Geo.  I.  Rex  v.  Weston 
€t  al,  ante  623.  Trin.  4  Geo.  II.  Rex.  v.  Clendon,  ante  870.  1  Keb. 
585.  612,  635,  were  cited. 

E  contra  were  cited  Salk.  382,  in  extortion,  Trin.  10  Anne,  Regina 
V.  Marshal,  against  two  for  receiving  stolen  goods.  1  Ven.  302.  3 
Keb.  700,  for  maintenance.  2  Roll.  Rep.  315.  Palm.  367.  Salk.  381, 
against  husband  and  wife  for  keeping  a  disorderly  house,  and  Regina 
V.  Dixon  et  ux.  Sti.  312.  Cro.  El.  230.  3  Leon.  230,  where  this  ex- 
ception was  not  taken  in  perjury.    Cro.  Car.  380. 

Sed  Per  Curiam.  There  may  be  great  inconveniences  if  this  is  al- 
lowed; one  may  be  desirous  to  have  a  certiorari,  and  the  other  not; 
the  jury  on  the  trial  of  all  may  apply  evidence  to  all,  that  is  but  evi- 
dence against  one.  The  cases  cited  are  all  of  that  which  may  be  joint, 
as  extortion,  maintenance,  &c.  but  perjury  is  a  separate  act  in  each: 
and  Trin.  6  Ann.  Regina  v.  Hodson  et  al.,  two  were  indicted  for  being 
scolds,  and  compared  to  barretry,  and  held  not  to  lie.  The  judgment 
was  arrested.    Strange  pro  def.^^  ^""^ 


CUSTODES  V.  TAWNY  AND  NORWOOD. 

(Upper  Bench,  1651.     Style,  312.) 

Tawny  and  Norwood  were  jointlvendicted  for  blasphemous  words 
severally  spoken  by  them,  upon  the  late  statute  made  against'  blas- 
phemy, and  were  convicted,  the  parties  being  removed  hither  by  habeas 
corpus.  It  was  urged  that  the  endictment  was  not  good,  because  it  was 
joint,  whereas  the  words  being  spoken  by  them  severally,  they  ought 
to  have  been  endicted  severally ;  for  the  words  spoken  by  one  of  them 
cannot  be  said  to  be  the  words  of  the  other.  But  Roll,  Chief  Justice, 
said:    The  pnHiri-mpnt  ^m^<^  gogd  enough  though  it  be  joint,  as  it  is  in 

58  Arrnrd-  TTttrring  profnnr  language.  State  v.  Lancaster,  36  Ark.  55  (1S80). 
Public  drunkenness.     State  v.  Deaton,  92  N.  G.  7SS  (1885). 


Ch.  10)  THE    INDICTMENT.  165 

the  case  of  several  perjuries,  and  several  batteries,  where  a  joint  en- 
dictment  doth  lie,  although  it  do  not  for  several  felonies,  and  here  the 
endictment  is  upon  one  and  the  same  3tatute,-aml  for  one  and  the  same 
offence,  and  therefore  the  judgment  giv-en  upon  it  is  also  good,  and  it 
shall  be  taken  reddendo  singula  singulis  (i.  e.)  the  words  to  each  of 
them  as  they  spoke  them.^® 


REX  V.  SUDBURY. 
(Court  of  King's  Bench,  1699.     12  Mod.  2G2.) 

The  defendants  were  indicted,  for  that  they  riotose  et  routose  as- 
semblaverunt,  and  so  assembled  committed  a  battery  on  Mary  Russell. 
Two  of  them  were  found  guilty,  and  all  the  others  were  acquitted ; 
and  judgment  was  arrested,  fyx-two-cannbt  commit  a  riot. 

But  by  Holt,  Chief  Justice.  If  the  indictinent  had  been,  that  the 
defendants,  with  divers  other  disturbers  of  thepeace,  had  committed 
this  riot,  and  the  verdict  had  ijeen,  m  this  case  the  king  might  have 
judgment.®" >■"■      " 


SECTION  3.— JOINDER  OF  OFFENSES 


It  is  frequently  advisable,  when  the  crime  is  of  a  complicated  na- 
ture, or  it  is  uncertain  whether  the  evidence  will  support  the  higher 
and  more  criminal  part  of  the  charge,  or  the  charge  precisely  as  laid, 
to  insert  two  or  more  counts  in  the  indictment.  *  *  *  Every  sep- 
arate count  should  charge  the  defendant  as  if  he  had  committed  a 
distinct  offense,  because  it  is  upon  the  principle  of  the  joinder  of  of- 
fenses,  that  the  iOHoder  of  counts  is  admitted^_3_X-R^  1Q6,  107-  And 
to  the  supposed  second  or  third  ottense  in  each  count  should  be  pre- 
fixed a  statement  that  the  jury  super  sacramentum  suum  ulterius  prae- 
sentant.  Holt,  687 ;  4  St.  Tr.  686 ;  6  St.  Tr.  App.  56 ;  2  Salk.  632. 
Nor  will  the  defect  of  some  of  the  counts  affect  the  validity  of  the 
remainder,  for  judgment  may  be  given  against  the  defendant  upon 
those  which  are  valid. 

Chitty,  Criminal  Law,  248. 

5  9  Accord:  Singing  libelous  songs.  Rex  v.  Benfield,  2  Burr.  9S0  (1700). 
False  pretense.  Young  v.  Rex,  3  T.  R.  98  (1789).  Disturbance  of  woi-sbip. 
Ball  V.  State,  67  Miss.  358,  7  South.  353  (1889). 

6  0  See,  also,  State  v.  Fox,  15  Vt  22  (1843) ;  State  v.  Davis,  2  Sueed  (Tenn.) 
273  (1854). 


166  THE   INDICTMENT.  (Ch.  10 

YOUNG  V.  REX. 

(Court  of  King's  Bench,  1789.     3  Term  R.  98.) 

An  indictment  was  preferred  at  the  sessions  at  Bristol  against  the 
defendants  on  the  30  Geo.  II,  c.  24,  for  ohtainino-  money  by  false  pre- 
tenses. *  *  *  The  defendants  wep  found  guilty,  and  sentenced 
to  be  transported  for  seyen_3-ears.     *    »*     * 

Fielding  made  five''oBjections  to  the  indictment.®^     *     *     * 

The  fourth  objection  was,  that  the  second  count  in  the  indictment 
states  a  distinct  offense,  not  arising  orrrsJjrJ'r  connected  with,  the 
charge  in  the  first  CQiiot. — The  charge  in  the  first  count  was  that  the 
bet  was  made  witlia  colonel  at  Bath ;  in  the  second,  that  it  was  with 
Osmer,  another  of  the  defendants.  This  therefore  should  have  been 
the  subject  of  another  indictment.  It  is  not  like  the  ordinary  case  of 
an  indictment  consisting  of  several  counts,  where  they  are  only  modi- 
fications of  the  same  offense;  for  here  is  no  mark  of  the  entirety  of 
the  offense.  These  offenses  are  distinct  in  their  nature,  and  lead  to 
distinct  punishments.  But  if  a  prisoner  be  indicted  for  two  separate 
offenses,  he  may  be  confounded  in  his  defense,  and  the  minds  of  the 
jury  distracted.  In  R.  v.  Roberts,  Garth.  226,  which  was  an  informa- 
tion against  the  defendant,  who  was  a  ferryman,  for  receiving  divers 
sums  of  money  from  different  passengers,  after  a  verdict  of  guilty, 
the  judgment  was  arrested;  and  Holt,  C.  J.,  said:  "In  every  such  in- 
formation, a  single  offense  ought  to  be  laid;  they  ought  not  to  be  ac- 
cumulated under  a  general  charge,  because  each  offense  requires  a 
separate  pimishment."  This  count,  then,  charging  a  distinct  offense, 
cannot  be  united  with  the  first;  neither  can  it  be  rejected  as  surplus- 
age ;  but  it  vitiates  the  whole  indictment.     *     *     * 

BuLLER,  J.  *  *  *  As  to  the  remaining  objection,  that  is 
founded  on  a  point  which  once  embarrassed  me  a  great  deal.  Some 
years  have  elapsed  since  I  looked  into  it,  but  I  believe  I  can  state  pretty 
accurately  how  it  stands.  In  misdemeanors,  the  case  in  Burrows 
shows  that  it  is  no  objection  to  an  indictment  that  it  contains  several 
charges.  The  case  of  felonies  admits  of  a  different  consideration ; 
but  even  in  such  cases  it  is  no  objection  in  this  stage  of  the  prosecu- 
tion. On  the  face  of  an  indictment  every  count  imports  to  be  for  a 
different  offense,  and  is  charged  as  at  different  times.  And  it  does  not 
appear  on  the  record  whether  the  offenses  are  or  are  not  distinct.  But 
if  it  appear  befoj:£.the-dcfendant  hao  pleaded,  or  the  jxiry  are  charged, 
that  he  is  to  be  tried  for  ooparatc  offcnoo&y-it^has  been  the  practice  of 
the  judges  to  quash  the  indictment,  lest  it  should  confound  the  pris- 
oner in  his  defense,  or  prejudice  him  in  his  challenge  of  the  jury;  for 
he  might  object  to  a  jurymaa^  trying  one  of  the  offenses,  though  he 
might  have  no  reason  to  do  so  in  the^pther.    But  these  are  only  mat- 

61  Part  of  this  case  is  omitted. 


Ch.  10)  THE    INDICTMENT.  1^7 

ters  of  prudence  and  discretion.  If  the  judge,  who  tries  the  prisoner, 
does  not  discover  it  in  time,  I  think  he  may  put  the  prosecutor  to  make 
his  election  on  which  charge  he  will  proceed.  I  did  it  at  the  last  ses- 
sions at  the  Old  Bailey,  and  hope  that,  in  exercising  that  discretion,  I 

(lid  not  infringe  on  any  rule  of  law  or  justice, But_i£  the  case  has 

gone  to  the  length  of  a  verdi«MUsjio  objection  in  arrest  of  judg- 
ment. If  it  were,  it  \veuld-xa:eiluTrLever):itidictment  which  contains 
several  counts.  So  where  the  evidence  affects  several  prisoners  dif- 
ferently, I  have  as  was  done  by  Mr.  Justice  Yates  at  Hereford,  se- 
lected the  evidence  as  applicable  to  each,  and  left  their  cases  separately 
to  the  jury.  And  in  a  case  which  happened  before  me  on  the  last 
Spring  assizes  at  Exeter,  where  two  prisoners  were  indicted  for  mur- 
der, and  evidence  given  which  pressed  very  hard  on  one  prisoner,  but 
was  not  admissible  against  the  other,  I  thought  it  the  soundest  way  of 
administering  justice  to  sum  up  the  evidence  and  take  the  verdict 
against  each  separately.  But  all  Lhesc  arc  mere  matters  of  discretion 
only,  which  judges  r--rrri-ir  in  nrdnr  to  Hv^  a  prisoner  a  fair  trial; 
for  when  a  verdict  is  given,  they  are  not  the  subject  of  any  objection 
to  the  record. 

Judgment  affirmed.^  ^ 


SECTION  4.— AMENDMENTS 


ODINGTON  V.  DARBY. 

(Court  of  King's  Bench,  1G12.     Bulst.  35.) 

YelvErton,  Justice.*'^  Two  years  '^inre,  two  vyere_mdicted  before 
me  at  the  assizes  for  felony,  in  case  of  life,  and  found  guilty^-and  this 
indictment  was  in  the  singulaLnurnber ;  and  this  appearing  so  unto 
me,  I  doubted  whether  the  indictment  was  good  or  not,  and  so  for  this 
cause  I  made  stay  thereof;  this  afterwards  I  moved  at  the  table  to  the 
judges,  eight  or  nine  of  them  being  present,  to  have  their  opinions 

r.2  In  some  states  stjitiitxi.'i  forbirl  tlip  jniiuleiLOf  different  offenses  in  the  same 
inclietment^See  pWTv.  De  Conrsey,  (Jl  Cal.  134  (1SS2) ;    State  v.  Morris, 

4o  Ark.  62  (1885).  ^  ,  ^  •  ^  •     +i,« 

"The  English  rule  against  the  joinder  of  a  felony  and  a  misdemeanor  in  the 
same  indictment  has  been  greatly  modified  by  modern  decisions.  It  would  be 
going  too  far  to  Siiv  now  that  it  exists  in  any  case,  except  it  is  where  the 
offenses  are  repugnant  in  their  nature  and  legal  incidents,  and  the  trial  and 
judgment  so  incongruous  as  to  tend  to  deprive  the  defendant  of  some  legal 
advantage.  Rex  v.'  Ferguson,  29  Eng.  Law  &  Eq.  53G ;  Burk  v.  State  2  Har. 
&  J  (Md)  426-  Harman  v.  Commonwealth,  12  Serg.  &  R.  Gi);  btate  v. 
Hooker  17  Vt.  658;  State  v.  Boise.  1  McM.  100;  Rex  v.  Galloway,  1  Moo  0. 
C.  234 ;  Wliart.  Am.  C.  L.  §  423."  Agnew,  J.,  in  Ilenwood  v.  Commonwealth, 
52  Pa.  424  (1866).  See,  further,  post,  c.  15 
6  3  Part  of  this  case  is  omitted. 


168  THE    INDICTMENT.  (Cll.  10 

herein,  and  by  all  of  theia_clearly  the  indictment  was  good,  this  not- 
withstanding, and  well  .agiendabTeT^nd  so  the_same  was  accordingly 
amended,  and  the  parties  afterwards  were  hanged  for  the  felony. 


ANONYMOUS. 

(Upper   Bench,    1G54.      Style,   433.) 

Darcy  moved  that  an  endictment  of  Michaelmas  term  last  might  be 
amended  in  the  caption.  But  Roll,  Chief  Justice,  answered:  It  can- 
not be  if  it  be  oX-thedast  term,  buthad  it  been  an  endictment  of  this 
term  it  might  have  been  amended. 


ANONYMOUS. 
(Upper  Bench,  1651.     Style,  321.) 

Letchmore  moved_th£_court  thattlie  word  publicae  might  be  put  into 
an  indictment  which  was  j;emoved  hither  bv  certiorari.  But  The 
Court  answered  it  could  not  be ;  but  because  the  indictment  was  of 
another  term,  the  clerk  of  the  peace  was  fined  at  ilO.  for  his  careless- 
ness, and  grosse  oversight,®* 

6  4  Accord:  As  to  material  allegations.  State  v.  McCarthy,  17  R.  I.  370,  22 
Atl.  282  (1891) ;  State  v.  Chamberlain,  6  Nev.  257  (1871) ;  People  v.  Trauk, 
88  App.  Div.  294,  85  N.  Y.  Supp.  55  (1903).  It  is  held  in  some  states  that  the 
court  may  amend  the  indictment  in  matters  of  form''witirdut  the  consent  of  the 
2;rand  jury  and  without  an  enabling  statute.  Hawthorn  v.  State,  56  Md.  530 
(1881).  Contra:  State  v.  Squire,  10  N.  H.  558  (1840).  Statutes  in  some  states 
permit  amendments  in  certain  particulars.  State  v.  Coi-bett,  12  R.  I.  288 
(1879) ;  Rosenberger  v.  Commonwealth,  118  Pa.  77,  11  Atl.  782  (1888) ;  Shiflett 
V.  Commonwealth,  90  Va.  3SG,  18  S.  E.  838  (1894) ;  Commonwealth  v.  Holley, 
3  Gray  (Mass.)  458  (1855).  See,  also,  Reynolds  v.  State,  92  Ala.  44,  9  South. 
398  (1890). 

"The  fundamental  question  here  is  'whether  an  information  may  be  amended, 
at  common  law,  at  the  desire  of  the  crown,  after  plea  pleaded.'  ♦  *  *  Why 
should  it  not  be  amended?  *  *  *  There  is— ar-^-pnt  difference  between 
amending  indictments  and  amending^  in formn linns.  Tndirtnipnts  are  found 
upon  the  oaths  of  a  jury,  and  ought  only  to  be  amended  by  themselves ;  but 
informations  are  as  declarations  in  the  king's  suit  An  officer  of  the  crown  has 
the  right  of  framing  them  originally,  and  may,  with  leave,  amend,  in  like  man- 
ner as  any  plaintiff  may  do.  If  the  amendment  can  give  occasion  to  a  new 
dfefense,  the  defendant  has  leave  to  charge  [change]  his  plea ;  if  it  can  make 
no  alteration  as  to  the  defense,  he  don't  want  it."  Lord  Mansfield,  in  Rex 
V.  Wilkes,  4  Burr.  2568,  2569  (1770). 


Ch.  10)  THE    INDICTMENT.  169 

PEOPLE  V.  RODLEY. 
(Supreme  Court  of  California,  1900.    131  Cal.  240,  63  Pac.  351.) 

Gray,  C.^^  The  defendant  ^vi>'^  ronyirtpr]  nf  pprjnrv  and  sentenced 
to  imprisonment  in  the  state  prison  for  the  term  of  13  years.  He  ap- 
peals from  the  judgment  and  from  an  order  denying  his  motion  for  a 
new  trial.     *     *     * 

It  appears  that  the  grand  jury  made  a  partial  report,  and  presented 
a  true  bill  against  defendant  for  perjury  on  December  15,  1899,  and 
the  clerk  was  directed  by  the  court  to  file  the  same,  and  issue  a  bench 
warrant  thereon  for  the  arrest  of  defendant ;  and  his  bail  was  fixed  at 
the  sum  of  $5,000.  The  jury  then  retired  for  further  deliberation. 
At  3  o'clock  p.  m.  of  the  same  day  the  grand  jury  returned  into  court, 
and,  after  being  called,  the  court  stated  and  the  jury  responded  as 
follows:  "The  indictment  which  was  presented  this  forenoon  in  the 
case  of  The  People  of  the  State  of  California  v.  J.  Ellis  Rodley,  De- 
fendant, was  resubmitted  by  the  court  to  the  grand  jury  from  the  dis- 
trict attorney  to  correct  an  error  that  appeared  upon  the  face  of  the 
indictment,  in  this :  that  it  appeared  from  the  indictment  presented 
that  the  matter  before  the  court  at  the  time  that  J.  Ellis  Rodley  was 
sworn  was  a  petition  forjeiteps-tcstawentary  in  the  estate  of  Alfred 
Fuller,  deceased,  whereas  the  fact  was,  amliLis^in  the  knowledge  of 
the  court,  that  the  petition  calkd_iar-l£tters  of  administration  with  the 
will  annexed.  Q.  Have  you  now,  ]\Ir.  Foreman,  the  indictment  cor- 
rected in  that  respect?  A.  Yes.  O.  Ha^  it  hp^n  submitted  aiTrTTTrt-ed 
upon  after  corj^clianZ-  A.  Yes.  Q.  And  it  is  now  returned  to  this 
court  as  the  correct  indictment  ?    A.  Yes." 

The  clerk  was  thereupon  directed  to  file  the  indictment,  and  that 
the  record  show  that  it  had  been  resubmitted.  A  bench  warrant  was 
ordered  to  issue  for  the  arrest  of  said  J.  Ellis  Rodley,  with  bail  fixed 
at  $5,000.  It  was  upon  the  indictment  as  amended  that  the  defendant 
was  arraigned,  pleaded  not  guilty,  and  w^as  thereafter  tried.  He  was 
not  arraigned  on  the  indictment  prior  to  its  amendment.  It  appears 
from  the  foregoing  that  there  must  have  been  a  variance  between  the 
indictment  as  originally  presented  to  the  court  and  the  evidence  upon 
which  the  indictment  was  found. 

There  is  nothing  io-  tke  Inw  tlmt  ivill  prevent  the  correction  of  a 
mere  mistake  like  this,  the  result,  no  doubt,  of  an  inadvertence.  The 
defendant  is  injured  in  no  way  by  the  correction.  "There  is  no  doubt 
that,  with  leave  of  the  court,  an  indictment  may  be  amended  by  the 
grand  jury  at  any  time  before  the  prisoner  has  pleaded,  and  before 
they  are  discharged."  Thomp.  &  M.  Jur.  p.  704 ;  Lawless  v.  State, 
4  Lea  (Tenn.)  173;   State  v.  Creight,  1  Brev.  (S.  C.)  169,  2  Am.  Dec. 

«5  Part  of  this  case  is  omitted. 


170  THE    INDICTMENT.  (Ch.  10 

656.  In  the  case  of  Terrill  v.  Superior  Court,  127  Cal.  XVIII,  60  Pac. 
38,  the  question  for  determination  was  whether  the  court,  after  de- 
murrer sustained  to  the  indictment,  could  resubmit  the  case  to  the 
same  grand  jury  that  had  found  the  first  indictment.  It  was  held  that 
this  could  not  be  done  under  the  Code  provision  cited  therein ;  but  the 
judge  who  delivered  the  opinion  of  the  court  in  the  course  thereof  re- 
marked: "Perhaps,  before  the  defendant  has  been  arraigned,  the  in- 
dictment could  be  withdrawn,  and  by  leave  of  the  court  sent  back  to 
the  jury  for  amendment."  This  is  what  seems  to  have  been  done  in 
the  present  case,  and  we  can  see  nothing  in  it  prejudicial  to  any 
right  of  defendant,  and  nothing  of  which  he  can  be  heard  to  com- 
plain.   *    *    * 

Pkr  Curiam.     For  the  reasons  given  in  the  foregoing  opinion,  the 
judgment  and  order  are  affirmed. 


Ch.  11)  ARRAIGNMENT,  ^I'LEASj  ^NDJW^TIONS.  ^  ^^  171    ^^^^    ^       '^ '^^ 


ik  171     ,  , 


CHAPTER  XI 


ARRAIGNMENT,  PLEAVAND  MOTimS^^'        !  f^M-^^ci'. 


^T(^ 


^  J 


SECTION   1.— ARRAIGNMEN 


AND   PLEAS 


^^--v^/ 


^T- 


IN   GENERAL 


iJ^'^tX^^S^^ 


The  arraignment  of  a  prisoner,  therefore,  consists  of  these  parts!    /^^^ 
1.  The  calhng-  the  prisoner  to  the  har  bv  his  name,  commanding  him          , 


..A^ 


When  the  offender  in  treason  or   felony  comes  into  court,  or  isT^^w^-^  j  /vv, 
brought  in  by  process,  sometimes  of  capias,  and  sometimes  of  habeal--^Y^,--'</vC' 
corpus  directed  to  the  gaoler  of  another  prison,  the  first  thing  that  fol^^j(2^>-^e^  Jli^A.  *^*v^ 
lows  thereupon,  is  his  arraignment.     *     *     *  ^^^^^  '-*''^~--'/'T*'*-fc_^. 

Arraignment,  therefore,  is  nothing  else  but  the  calling  of  the  offen-/i  ^^-^/ 

der  to  the  bar  of  the  court  to  answer  the  matter  charged  upon  him  byj^/V-^^-A^^ —    ^'^^*v^ 
indictment  or  appeal.     *     *     *  i^^Ji^^A^^  , (pC  Jj 

to  hold  up  his  hand,  \vhlcli -though  it  may  seem  a  trifling  circumstance^    -^^   ^"^^H/^fc^. 
yet  it  is  of  importance,  rfor^by  holding  up  his  hand  constat  de  persona'u2^>-c^  Aa 
indictati  and  he  owns  himself  to  be  of  that  name.  i/'^'^^-V^  >l^ 

2.  Reading  the  indictment  distinctly  to  him  in  English,  that  he  may    '— ^•^-vf 
understand  his  charge.  /D-,J^    i    /«»  L, 

3.  r)pmQnHi'naL  qJ   lii'm    uriipthpr   hf-   hp    guilty    nr   nnt    guilty;     and    ^hTjZ^^^^-     J 

he  pleads  not  guilty,  the  clerk  joins  issue  with  him  cul.  prist,  and  ^n-^*'y^^^~^'^  jjl 
ters  the  prisoner's  plea.    Then  he  demands  how  he  will  be  tried.     The    , 
common  answer  is,  "By^God-and-llie  country,"  and  thereupon  the  clerk  cr"^'^^ 
enters  po.  se,  and  prays  to  God  to  send  him  a  good  deliverance.  /VVv/>«*n' '^■^A-v^^.^ 

But  if  the  prisoner  hath  any  matter  to  plead  either  in  abatement,  or  \J-~^-^    -L  o 
in  bar  of  the  indictment,  as  misnomer,  auterfoits  acquit,  auterfoits  con-^^^__*  -vyiZ,_/-. 
vict,  a  pardon,  etc.,  then  he  pleads  it  without  immediate  answering  to 
the  felony ;   but  in  some  cases  si  trove  ne  soit,  then  to  the  felony  not 
guilty,  de  qvio  postea.    And  thus  far  what  the  arraignment  is.     *     *     * 

A  man  is  said  to  stsjid-nTute  wH^,  being  arraigned  for  felony  or 
treason,  either  (1)  he  answers  not  at  all,  or  (2)  if  he  answers  with 
such  matter  as  is  not  allowable  for  answer,  and  will  not  answer  other- 
wise, or  (3)  where  he  pleads  not  guilty,  but  when  demanded  how  he 
will  be  tried,  either  will  say  nothing,  or  not  put  himself  upon  the  coun- 
try. 

If  he  stand  mute  and  say  nothing  at  all,  in  case  of  felony  the  court 
ought  ex  officio  to  impanel  a  jury  and  swear  it  as  an  inquest  of  office 
to  inquire,  whether  he  stand  mute  of  malice,  and  if  found  so,  he 
shall  have  the  judgment  of  peine  fort  et  dure,  or  whether  it  be  ex  visi- 


ZZ'^ 


172 


ARRAIGNMENT,    PLEAS,    AND    MOTIONS. 


(Ch.  11 


tatione  Dei,^  and,  if  found  so,  they  are  to  inquire  touching  all  those 
points,  which  he  might  possibly  plead  for  himself,  as  whether  a  felony 
were  done,  whether  he  be  the  same  person  that  is  indicted  for  it, 
whether  he  did  it,  and  whether  he  hath  any  matter  to  allege  for  his 
discharge. 

But  what  if  all  this  be  found  against  the  prisoner,  what  shall  be 
done?  Whether  judgment  of  death  shall  be  given  against  him,  though 
he  never  pleaded,  seems  yet  undetermined.^ 

2  Hale,  Pleas  of  the  Crown,  216,  316. 


ANONYMOUS. 

(Court  of  King's  Bench,  1688.     3  Mod.  265.) 

A  gentleman  was  convicted  upon  bis  pwn.  rnrifp^dnn  for  high  trea- 
son in  the  rebellion  oTthe  Duke  of  Monmouth,  and  executed. 

It  was  moved  that  his  aliailiderjTTight_be  reversed ;  the  Judges  were 
attended  with  Books,  and  the  exceptions  taken  were,  viz. : 

First.  There  was  no  arraignment,  or  demanding  of  judgment. 

Secondly.  There  was  process  of  venire  facias,  which  ought  not  to 
be  in  treason,  but  a  capias. 

Thirdly.  Because  after-the_confession  IheHiidgment  followed,  and 
it  does  not  appear  that  the  party  was  asked  what  he  could  say  why 
sentence  of  death  shaH-not  pass  upon  him ;  for  possibly  he  might  have 
pleaded  a  pardon. 

For  these  reasons  the  attainder  was  reversed. 


FITZHARRIS'  CASE. 
(Court  of  King's  Bench,  1681.     Vent.  354.) 

Edward  Fitzharris  was  iiT^icte4-©i-High*  Treason ;  upon  which  be- 
ing arraigned,  and  demanded  to  plead,  he  delivered  in  a  Paper  con- 
taining a  Plea  to  the  Jurisdiction  of  the  Court ;  which  could  not  be 
received  (as  the  Court  said),  not  being  under  Counsel's  Hand. 
Whereupon  he  prayed  to  have  Counsel  assigned,  and  named  divers, 
whereof  the  Court  assigned  four.  And  he  was  taken  from  the  Bar, 
three  or  four  Days  being  given  him  to  advise  with  his  Counsel,  to  pre- 
pare his  Plea  as  they  w^ould  stand  by  him. 

The  Counsel  prayed,  that-4licv  uii,i*k4U3ave  a  Cojy  nf  th^-Jndirtmpnf. 

But  the  Court  denied  it  and  said,JIliaLitwas  not  permitted  in  Trea- 
son, or  any  other  capital  Crimes. 

1  For  procedure  on  arraignment  of  a  dumb  person,  see  Thompson's  Case,  2 
Lewin,  C.  C.  137  (1827). 

2  It  is  now  generally  provided  by  statute  that,  on  failure  to  plead,  a  plea 
of  not  guilty  shall  be  entered.  Keg.  v.  Bernard,  1  Fost.  &  F.  240  (1858); 
Commonwealth  v.  Place,  153  Pa.  314,  26  Atl.  620  (1893). 


Oh.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  1T3 

But  Justice  DoLBEN  said,  That  sometimes  it  had  been  allowed  to 
take  Notes  out  of  the  Indictment.  Vid.  ISIirror,  30i.  Abusion  est  que 
Justices  ne  monstre  I'Indictment  a  les  Indictes  s'ils  demandront.  Sec- 
tion 115. 

And  note,  by  St.  7  W.  Ill,  c.  3.  Person5Jttdictfid_Qrrxea£Qn^ where 
Corruption  of  Blood  is,  are  to  have  a  copy  of  their  Indictment  five 
Days  before^_tli£ir  Trial. ^ 


HOSKINS  V.  PEOPLE. 

(Supreme  Court  of  Illinois,  1876.    84  111.  87,  2.5  Am.  Rep.  433.) 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court. 
Defendant  was  indicted,  at  the  August  term  of  the  circuit  court  of 
Marion  county,  foE-Jaaxeny.     On  the  trial,  he  was  found  guilty,  and 
sentenced  to  the  penitentiary  for  a  period  of  three  years. 

It  appears,  from  the  record,  that  Hpf^nHani-  "uaivpH  arrniPTunent. 
copy  of  indictment,  Hst  of  jurors  and  witnesses/'  etc.,  btit  no_plea  of 
any  kind  waS'entere^ — Su  far  db  ttrfs^record  dfscloses,  no  plea  was 
entered  before  lHe~accused  was  placed  on  trial.  .  ()n_the^  authority  of 
the  former  decisions  of  this  mnri-,  thjg  wa<;  error.  Johnson  v.  People, 
22  111.  314 ;  Yundt  v.  People,  65  111.  372.  It  was  held  in  those  cases 
that,  without  an  issue  formed,  there  could  be  nothing  to  try,  and  the 
party  convicted  could  not,  properly,  be  sentenced.  This  error  may  be 
corrected,  and  the  accused  may  be  arraigned  and  required  to  plead 
to  the  indictment  before  he  is  again  placed  on  trial. 

The  judgment  will  be  reversed  and  the  cause  remanded. 
Judgment  reversed. 

Sheldon,  C.  J.,  and  BrEEse  and  Craig.  TJ.^do^not  concur  in  this 
opinioftT  The  record  showsThe  prisoner  expressly  waived  an  arraign- 
ment,  which,  per  se,  includes  the  plea.  We  think  the  waiver  of  ar- 
raignment was  a  waiver  of  the  formal  entry  of  a  plea  of  not  guilty. 
The  prisoner  has  had  a  fair  trial  by  jury,  and  was  adjudged  guilty. 
The  entry  of  a  plea,  under  the  circumstances,  was  mere  form,  and  un- 
necessary. If  objections  so  technical  as  this  are  to  prevail,  it  will  be 
difficult  to  enforce  the  Criminal  Code.  The  prisoner  has  had  an  im- 
partial trial  by  a  jury  of  the  vicinage,  on  a  good  indictment,  and  was 
tried  in  the  same  manner  and  asked  instructions  as  though  a  plea  of 
not  guilty  had  been  interposed.  We  perceive  no  ground  for  reversing 
the  judgment,  as  the  facts  proved  are  conclusive  against  him.* 

3  While  on  arraignment,  indictment  sliould  be  read  in  full,  yet.  if  the  formal 
concludinR  part  is  omitted,  it  will  not  vitiate  a  sentence  pronounced  on  a 
plea  of  guilty.    State  v.  Crane,  121  La.  1039,  46  Soutli.  1009  (1908). 

4"In  State  v.  Cassadj",  12  Kan.  .j^O,  the  announcement  by  the  defendant  that 
he  was  ready  for  trial  upon  the  information  was  treated  as  a  denial  of  guilt 
and  an  informal  plea.  Here  thtj  acfiiid.rni  uL>UamJx,dHljQt-plead.  but  the 
opportunity  for  pleadius-waci  novor  ovtondcd  to  him -^tUbough  he  was  charged 
with  felony.    So  wide  a  departure  from  the  established  rules  of  criminal  pro- 


174  ARRAIGNMENT,   PLEAS,   AND    MOTIONS.  {Ch.  11 

HACK  V.  STATE. 
(Supreme  Court  of  Wisconsin,  1910.    141  Wis.  346,  124  N.  W.  492.) 

WiNSLOW,  C.  J.^  The  plaintiff  in  error  (hereinafter  called  the  de- 
fendant) was  convicted  ofseinn!g3iEiSlgL_to_j^minor  of  the  age  of  13 
years,  and  brings  his  wrTToTerror  to  reverse  the  judgment.     =>=     *     * 

By  a  singnlnr  nvprsight  the  drf^r^^^nt  was  not  formally  arraigned 
in  the  circuit_coiijl,.^and  never  pleaded  to  the  information.  An  in- 
formation m  due  fofiTiwas  filed ,  Lhe  jurjrwas  called  and  sworn ;  wit- 
nesses for  both  the  state  and  the  defendant  were  examined  and  cross- 
examined;  the  jury  was  charged  by  the  court,  and  rendered  its  ver- 
dict, in  all  respects  as  though  issue  had  been  formally  joined.  Inas- 
much as  the  information  was  valid,  and  the  jury  duly  sworn  and 
charged  with  the  defendant's  deliverance,  he  was  put  in  jeopardy,  so 
that,  had  he  been  acquitted,  he  could  not  have  been  again  prosecuted. 
He  knew  perfectly  well  the  offense  with  which  he  was  charged,  and 
was  allowed  to  make  his  defense  just  as  fully  and  effectively  as  if  a 
plea  of  not  guilty  had  been  made,  and  the  question  now  is  whether  the 
inadvertent  omission  of  arraignment  and  plea,  which  has  not  in  the 
least  affected  any  substantial  right  of  the  defendant,  should  be  held 
fatal  to  the  judgment. 

It  is  freeljL.^;onceded  tjnt  thf  ^nrl]^  "^i^^^n^in  decisions  answer  this 
question  in  the  affirmative.  Anderson  v.  State,  3  Pin.  367  ;  Douglass 
V.  State,  1{  Wis.  8^0;  DaVTs  v.  State,  38  Wis.  487.  See,  also.  Grain 
V.  U.  S.,  163  U.  S.  625,  16  Sup.  Ct.  952,  40  L.  Ed.  1097,  where  the  au- 
thorities are  reviewed,  and  the  doctrine  contended  for  by  the  defend- 
ant fully  sustained  by  a  divided  court. 

It  must  also  be  conceded  tliat  it  i^;  held  by  the  Supreme  Court  of  the 
United  States,  in  the  Grain  Gase,Ntliat  arraignmefrt-and  plea  are  es- 
sential to  due  process  of  law,  guaranteed  tgjbe  ritizen  by  the  four- 
teenth amendment?'  A  sLaLe  LUUl"3"lTot,  therefore,  pass  a  law  providing 
for  trial  without  arraignment  or  plea;  but  that  does  not  necessarily 
affect  the  question  whether  a  citizen  may  not  effectually  waive  that 
right.  This  court  has  held  that  constitutional  rights  may  be  waived 
by  the  defendant,  eTrept,  p^rhnr^i  i^  capital  cases.  Thus  an  accused 
person  has  the  absolute  constitutional  right  to  a  trial  by  a  jury,  which 
means  a  body  of  12  competent  jurymen,  yet  this  court  held,  as  early 
as  the  case  of  State  v.  Vogel,  22  Wis.  471,  that  by  not  exercising  his 
right  of  challenge  the  defendant  waived  all  objections  to  the  quali- 
fications of  jurors,  and  a  verdict  of  guilty  would  stand,  notwithstand- 
ing the  fact  that  one  of  the  jurors  was  an  alien,  and  the  further  fact 
that  his  alienage  was  not  known  to  the  defendant.     *     *     * 

cedure  cannot  be  approved."    Johnston,  J.,  in  State  v.  Balder,  57  Kan.  545,  46 
Pae.  948  (18,96). 

See  Tarver  v.  State,  95  Ga.  222,  21  S.  E.  381  (1894). 

6  Part  of  this  case  is  omitted. 


Ch.  11) 


ARRAIGNMENT,    TLKAS,    AND    MOTIONS. 


175 


The  ancient  doctrine  that  the  accused  could  waive  nothing  was  un- 
questionably founded  upon  the  anxiety  of  the  courts  to  see  that  no  in- 
nocent man  should  he  convicted.  Tt_^|-n-;p  it-|  those  days  when  the  ac- 
cused could  not  testif\L_LLL-LLk  owii_bVhalf.^_was  not  furnished  counsel, 

id,  by  the  death  penalty,  or  someother 


and  was  pu^iishrd 


grievous  punishment  out  n_f_all  proportion  to  the  gravity  of  his  crime. 
Under  such  circumstances  it  was  well,  perhaps,  that  such  a  rule  should 
exist,  and  well  that  every  technical  requirement  should  be  insisted  on, 
when  the  state  demanded  its  meed  of  blood.  Such  a  course  raised  up 
a  sort  of  a  barrier  which  the  court  could  utilize  when  a  prosecution 
was  successful  which  ought  not  to  have  been  successful,  or  when  a 
man  without  money,  without  counsel,  without  ability  to  summon  wit- 
nesses, and  not  permitted  to  tell  his  own  story,  had  been  unjustly  con- 
victed, but  yet  under  the  ordinary  principles  of  waiver,  as  applied  to 
civil  matters,  had  waived  every  defect  in  the  proceedings.  Thanks  to 
the  humane  policy  of  the  modern  criminal  law,  we  have  changed  all 
these  conditions.  The  man  now  charged  with  crime  is  furnished  the 
most  complete  opportunity  for  making  his  defense.  He  may  testify 
in  his  own  behalf;  if  he  be  poor,  he  may  have  counsel  furnished  him 
by  the  state,  and  may  have  his  witnesses  summoned  and  paid  for  by 
the  state ;  not  infrequently  he  is  thus  furnished  counsel  more  able  than 
the  attorney  for  the  state,  in  short  the  modern  law  has  taken  as  great 
pains  to  surround  the  accused  person  with  the  means  to  effectively 
make  his  defense  as  the  ancient  law  took  pains  to  prevent  that  con- 
summation. The  reasons  which  in  some  sense  justified  the  former 
attitude  of  the  courts  have  therefore  disappeared,  save  perhaps  in 
capital  cases,  and  the  question  is:  Shall  we  adhere  to  the  principle 
based  upon  conditions  no  longer  existing?  No  sound  reason  occurs 
to  us  why  a  person  accused  of  a  lesser  crime  or  misdemeanor,  who 
comes  into  court  with  his  attorney:,  fully  advisecl^f  all  his  rights,  and 
furnished  with  every  means  of  making  his  detens"e7~sliould  not  be  held 
to  waive  a  right  or  privilege  for  wdiicli  he  does  not  ask,  just  as  a  party 
to  a  civil  action  waiv^^uch  a  right  by  not  aslsuig  tor  it. 

Surely  th,:^  r1pfp|^rl^|-||-c1inn1rl  hfl^-P  '"''Prv  nTi£!.nf  hi'V-TTiTP^titntional 
rights  and  privileges,  bu^should  he.b^  pprnij|^p.]  \n  jno-"-1p  with  them? 
Should  he  he  silent  when  he  ought  to  ask  for  some  minor  right  which 
the  court  would  at  once  give  him,  and  then  when  he  has  had  his  trial, 
and  the  issue  has  gone  against  him,  should  he  be  heard  to  say  there 
is  error  because  he  was  not  given  his  right?  Should  he  be  allowed 
to  play  his  game  with  loaded  dice?  Should  justice  travel  with  leaden 
heel  because  the  defendant  has  secretly  stored  up  some  technical  er- 
ror, not  affecting  the  merits,  and  thus  secured  a  new  trial  because  for- 
sooth he  can  waive  nothing?  We  think  not.  We  think  that  sound 
reason,  good  sense,  and  the  interests  of  the  public  demand  that  the 
ancient  strict  rule,  framed  originally  for  other  conditions,  be  laid  aside, 
at  least  so  far  as  all  prosecutions  for  offenses  less  than  capital  are  con- 
cerned.   We  believe  it  has  been  laid  aside  in  fact  (save  for  the  single 


176  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Ch.  11 

exception  that  trial  by  a  jury  of  12  cannot  be  waived  unless  authorized 
by  a  specific  law)  by  the  former  decisions  of  this  court.  It  is  believed 
that  this  court  has  uniformly  attempted  to  disregard  mere  formal  er- 
rors and  technical  objections,  not  affecting  any  substantial  right,  and 
to  adhere  to  the  spirit  of  the  law  which  giveth  life  rather  than  to  the 
letter  which  killeth.  It  may  not  always  have  succeede'd ;  it  is  intensely 
human,  but  since  the  writer  has  been  here  he  knows  that  the  attempt 
has  been  honestly  made. 

In  this  line  the  court  is  glad  to  welcome  legislative  assistance  and 
approval.  By  chapter  192,  p.  205,  Laws  1909  (section  3072m  was 
added  to  St.  1898),  it  is  provided  that  no  judgment,  civil  or  criminal, 
shall  be  set  aside  or  new  trial  granted  for  any  error  in  admission  of 
evidence,  direction  of  the  jury,  or  any  error  in  pleading  or  procedure, 
unless  it  shall  appear  that  the  error  complained  of  has  affected  the 
substantial  rights  of  the  party  complaining.  How  much  this  adds  to 
the  provisions  of  section  2829,  which  has  been  on  the  statute  books 
since  1858,  is  not  entirely  clear.  At  least  it  shows  the  legislative  in- 
tent to  specifically  apply  the  law  to  criminal  actions.  Its  terms  are 
clear,  and  will  unquestionably  assist  the  court  in  its  effort  to  do  sub- 
stantial justice  in  all  actions,  either  civil  or  criminal,  without  regard 
to  immaterial  errors  or  inconsequential  defects.  This  court  will  loyally 
stand  by  this  law,  and  will  earnestly  endeavor  to  administer  it  so  as  to 
do  equal  and  exact  justice,  so  far  as  human  eft'ort  can  accomplish  that 
end. 

Our  conclusion  is  thatjhp  dnrtrine  of  Douglass  v.  State,  supra,  and 
the  cases  following  i>t,  should  be  overruled.  The  principle  now  de- 
clared is  that  the  rj^ht  of  arraignn^ent  and  plea  will  be  waived  by  the 
defendant  by  his  sikiace..when  he  ought  to  demand  it,  in  all  cases  (ex- 
cept capital  .eases)  where  it  appears  that  he  is  fully  informed  as  to  the 
charge  against  him,  and  is  not  otherwise  prejudiced  in  the  trial  of  the 
case  by  the  omissTorT^f  that  formality.  Other  Code  states  so  hold. 
People  V.  Osterhout,  34  Hun,  260;  People  v.  Bradner,  107  N.  Y.  1, 
13  N.  E.  87;  State  v.  Cassady,  12  Kan.  550;  State  v.  Straub,  16 
Wash.  Ill,  47  Pac.  227;   Hudson  v.  State,  117  Ga.  704,  45  S.  E.  66. 

;|;         ^.         ;): 

Judgment  affirmed.® 

Kerwin,  J.,  dissents,    Timlin,  J.  (dubitante). 


We  are  now  to  consider  the  plea  of  the  prisoner,  or  defensive  mat- 
ter alleged  by  him  on  his  arraignment,  if  he  does  not  confess  or  stand 
mute.    This  is  either:    (1)  A  plea  to  the  jurisdiction;    (2)  a  demur- 

6  By  statutory  provision  in  some  states  arraignment  may  be  waived.  See 
State  V.  Tliompson,  95  Iowa.  464,  64  N.  W.  419  (1895) ;  People  v.  Tower.  63 
Hun,  624,  17  N.  Y.  Supp.  395  (1892) ;  State  v.  Hoffman,  70  Mo.  App.  271  (1897) ; 
State  v.  Brock,  61  S.  C.  141,  39  S.  E.  359  (1900). 


Cll.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  177 

rer;  (3)  a  plea  in  abatement;  (4)  a  sijec^ial  plea  in  bar;  or  (5)  the 
general^sue.  *  *  *  Formerly  there  was  another  plea,  now  ab- 
rogated, that  of  sanctuary.'^  *  *  *  Formerly  also  the  benefit  of 
clergy  used  to  be  -pleaded  .biifore  trial  or  conviction,  and  was  called  a 
declinatory  plea.^  *  *  *  ^  plgj^  ^-q  ^j^g  jurisdiction  is  where  an 
indictment  is  taken  before  a  court  that  hath  no  cognizance  of  the  of- 
fense. *  *  *  A  demurrer  to  the  indictment.  This  is  incident  to 
criminal  cases  as  well  as  civil,  when  the  fact  alleged  is  allowed  to  be 
true,  but  the  prisoner  joins  issue  upon  some  point  of  law  in  the  in- 
dictment, by  which  he  insists  that  the  fact,  as  stated,  is  no  felony,  trea- 
son, or  whatever  the  crime  is  alleged  to  be.  *  *  *  Sliiiie  have 
held  (2  Hale,  P.  C.  257)  that  if,  on  demurrer,  the  point  of  law  be  ad- 
judged against  the  prisoner,  he^shalLhave  judgment  and  execution,  as 
if  convicted  by  verdict.  But  this  is  denied  by  others  (2  Hawk.  P.  C. 
334),  who  hold  that  in  such  case  he  shall  be  directed  and  received  to 
plead  the  general  issugy-ni;)!^ g uill>' ,  after  a  demurrer  determined  against 
him,  which  appears  the  more  reasonable. 

A  plea  in  abatement  is  principally  for  a  misnomer,  a  wrong  name, 
or  false  additionjtoTtTe"prlsoner. 

Special  pleas  in  bar,  whicb_-go  to  the-^nerits  of  the  indictment,  and 
give  a  reason  why  the  prisonerTnTght  not  to  answer  it  at  all,  nor  put 
himself  upon  his  trial  for  the  crime  alleged.  These  are  of  four  kinds : 
A  former  acgiiittal,  a  former  conviction,  a  former  attainder,  or  a  par- 
don. 

4  Black.  Com.  c.  XXVI. 


REGINA  V.  FADERMAN. 

(Central  Criminal  Court,  1S.jO.     3  Car.  &  K.  353.) 

Demurrer.  The  prisoners  were  indicted  at  the  Central  Criminal 
Court  of  the  February  session,  1850,  and  Mr.  Justice  Vaughan  Wil- 
liams stated  the  following  case  for  the  opinion  of  the  Court  for  Crown 
Cases  Reserved : 

"The  prisoners  were  indicted  under  Stat.  1  Wm.  IV,  c.  66,  §  19, 
by  which  it  is  made  a  felony  to  engrave,  etc.  (without  authority),  on 
any  plate  or  on  any  wxK)d,  stone  or  other  material,  any  bill  of  ex- 
change, promissory  note,  undertaking  or  order  for  the  payment  of 
money  or  any  part  of  any  bill  of  exchange,  etc.,  of  any  foreign  prince 
or  state,  or  knowingly  to  have  in  possession  any  plate,  etc.,  so  en- 
graved, or  to  utter  or  to  knowingly  have  in  possession  any  paper  on 
which  any  part  of  such  foreign  bill,  etc.,  shall  be  made  or  printed. 

"The  counsel  for  the  prisoners  demurred  to  the  indictment,  and  the 

7  See  2  Pollock  &  Maitland's  Hist.  E3ng.  r.,aw  (1st  Ed.)  .588. 

8  See  1  Pollock  &  Maitland's  Hist.  Eng.  Law  (1st  Ed.)  424  et  seq. 

Mik.Or.Pb.— 12 


178  ARRAIGNMENT,    TLEAS,    AND    MOTIONS.  (CL.  11 

demurrer  having  been  argued,  I  gave  judgment  for  the  crown.  But  1 
reserved  the  question  as  to  the  validity  of  the  indictment  (a  copy  of 
which  will  accompany  this  statement)  for  the  consideration  of  this 
court.  [Signed]     Edw.   Vaughan   Williams."  ^ 

Alderson,  B.,  now  delivered  the  opinion  of  the  [Central  Criminal] 
Court  as  to  what  judgment  should  be  entered  up  on  the  demurrer. 
His  Lordship  said : 

The  first  question  is  whether  this  demurrer  can  be  sustained,  and 
it  is  the  unanimous  opinion  of  the  court  that  the  demurrer  must  be 
overr«4e4r-iuasiiiuch  as  rrappears  to  lhel:ourt  tharuiaiiy  uf  the  counts 
in  this  indictment  are_clearlv  good ;  and  as-Qn£_good_count  would  be 
sufficient-to  authorize  a  convictionand  judgment^  thecourt  is  clearly 
of  opinion  that  this  demurrer,  "which  goes  to  the  sutiiciencv'~X)f  the 
whole  JndTrfment,  miTst  be  overruled.  A  moreimportant  question  re- 
mains to  be  disposed  of,  which  is  as  to  what  judgment  this  court  ought 
to  pronounce  on  the  demurrer  being  overruled.  Whether  the  prisoners 
are  to  be  allowed  to  plead  over?  or  whether  final  judgment  should  be 
passed  upon  them  as  in  the  case  of  a  conviction  ?  We  have  taken  time 
to  look  into  the  authorities  on  the  subject,  and  have  taken  consider- 
able pains  to  ascertain  what  is  the  right  course  to  be  taken  in  this 
case,  and  the  result  at  which  we  have  arrived  is  that  the  judgment  must 
be  final,  inasmuch  at^-W  -^  oetieiMJ  demurrer,  which  this  is,  the  pris- 
oners confess  all  the  material  facts  charged  against  them  in  the  in- 
dictment. In  the  case  of  a  demurrer  of  a  special  nature,  which  is 
usually  called  a  demurrer  in  abatement,  it  may  be  otherwise ;  and  it 
is  very  probable  that  the  various  dicta  which  occur  in  the  books  in 
opposition  to  our  present  decision  may  be  accounted  for  by  this  dis- 
tinction not  having  been  sufficiently  attended  to. 

Parry,  for  the  prisoner,  asked  that  they  might  be  allowed  to  with- 
draw the  demurrer,  and  plead  not  guilty. 

Alderson,  B.  We  cannot  allow  that,  and  I  think  that  such  a  pro- 
ceeding ought  not  to  be  encouraged. 

On  a  subsequent  day  sentence  was  passed  on  the  prisoners.^** 

9  The  Court  for  Crown  Cases  Reserved  held  it  had  no  jurisdiction  in  a 
case  in  which  .indgment  had  been  given  on  a  demurrer  and  therefore  gave 
no  judgment.    The  proceedings  in  that  court  are  liere  omitted. 

10  Accord:  Where  the  indictment  is  for  a  misdemeanor.  Wickwise  v. 
State.  19  Conn.  477  (1849) ;  McCuen  v.  State.  19  Ark.  6:=!0  (18o8).  It  is  in  the 
discretion  of  the  court,  however,  to  allow  the  defendant  to  answer  over. 
Commonwealth  v.  Gloucester,  110  ]Mass.  500  (1872) ;  State  v.  Wilkins.  17  Vt. 
151  (1845).  It  is  generally  said,  in  the  cases  in  this  country,  that,  while  judg- 
ment adverse  to  defendajitlinrarilShUU'rer  to  an  indictment  for  a  misdemeanor 
is  final,  thpjikp  judgment  on  an  Indictment  for  felony  must  be  respondeat 
ouster.  State  v.  Merrill,  37  Me.  329  (1853) ;  Commonwealth  v.  Foggy,  6  Leigh 
(Va.)  G38  (1836) ;  McCuen  v.  State,  19  Ark.  (J30  (1858).  In  some  states,  by 
i'.tatute.  the  right  t^ojilead  over  is  secured  to  the  defendant,  even  in  cases 
of  misdemeanor.    Thomas  v.  State,  G  Mo^_4;>7  (1840). 


Ch.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  179 


COMMONWEALTH  v.  INGERSOLL. 

(Supreme  Judicial  Court  of  Massachusetts,  Essex,  1887.     145  Mass.  3S1,  14  N. 

E.  44!>.) 

Complaint  to  the  pnHrw-niirt  of  r;innrp<;tpr  for  Vcepin^  intoxicating 
liquors  with  intent  vmlawfully  to  sell  the  same  in  this  commonwealth. 

The  record  recited  that  the  defendant  was  arrested  and  brought  be- 
fore said  court,  and  the  complaint  read  to  him,  "and,  being  asked 
whether  he  is  guilty  or  not  of  the  ofifense  within  charged  upon  him, 
pleads  nolo  contendere,  but,  after  hearing  divers  witnesses  duly  sworn 
to  testify  the  whole  truth,  and  fully  understanding  the  defense  of  said 
defendant,  it  is  adjudged  by  the  said  court  that  said  defendant  is  guilty 
of  said  offense,"  and  that  the  defendant  was  sentenced. 

From  this  sentence  the  defendant  appealed  to  the  superior  court, 
and  at  May  term,  1886,  at  the  request  of  the  defendant,  the  complaint 
was  placed  upon  file. 

At  January  term,  1887,  the  defendant  having  been  convicted  upon 
another  complaint,  the  district  attorney  moved  for  sentence  upon  the 
former  complaint.  Whereupon  the  defendant  claimed  the  right  to 
plead  anew,  and  filed  a  motion  therefor,  upon  the  following  grounds : 
"(1)  That  it  did  not  appear_by  the  r_eaii:d-i»f  oaid  poHce  court  that  the 

plea    of    nolo    r-rinl-pririprpj^vpc:    rprpivpf!    with    the    COUSCUt   of    the   public 

prosecutor,  or  accepted  by  the  commonwealth,  or  by  the  court.  (2) 
That  no  plea  had  been  enterecTm  said  police  court  upon  which  the  de- 
fendant could  be  legally  tried." 

Hammond,  ].,  ovefrliTed  this  motion,  and  ruled  that  there  was  noth- 
ing for  the  jury,  and  that  the  case  was  ripe  for  sentence.  The  defend- 
ant alleged  exceptions. 

A.  J.  Waterman,  Attorney  General,  for  the  Commonwealth.  F.  L. 
Evans,  for  the  defendant. 

Morton,  C.  J.  If  the  defendant  in  a  criminal  case  pleads  guilty, 
he  cannot  afterwards  retract  his  plea  and  plead  anew,  except  by  leave 
of  the  court.  If,  therefore,  a  defendant  pleads  guilty  in  a  municmaj. 
or  police'court,  and  appeals  from  the  sentence  to  the  superior  cfTurt, 
he  cannot  of  right  claim  a  trial  by  jury,  but  is  liable  to  be  sentenced 
upon  his  original  plea  in  the  court  below,  unless  the  court  gives  him 
leave  to  plead  anew.  Commonwealth  v.  Mahoney,  115  Mass.  151 — A 
plea  of  nolo  '-r.ntpr.rlp,.:^  whfn  flcce\)tef]  hv  the  court,  is,  in.  its  eft'ect 
upon  the  case,  ^uivalcnt  to  tcj^ka-oi-guilty.  Itjs  an  implied  con- 
fession  of  nr,^iif  pnly  c,|-||]  rnnnnf  hp  n^ed  agaiust  the  defevidnnt  as'^n 
admission  in  any  civil  suit  for  Jhe  sTme  acj.  The  judgment  of  con- 
viction follows  upon  such  a  plea^  as  w^ell  as  upon  a  plea  of  guilty,  and 
such  plea,  if  accepted,  cannot  be  withdrawn,  and  a  plea  of  not  guilty 
entered,  except  by  leave  of  court.  But  there  is  a  difference  between  the 
two  pleas,  in  that  the  defendant  cannot  plead  nolo  contend^J^-wrthout 
the  leave  of  the  cquHt.  ifsuch  plea  is  tendered,  the  court  may  accept 
or  decline  it  in  its  discretion. 


380  ARRAIGNMENT,    PLEAS,   AND    MOTIONS.  (Ch.  11 

If  the  plea  is  accepted,  it  is  not  necessary  or  proper  that  the  court 
should  adjudge  the  party  to  be  guilty,  for  that  follows  as  a  legal  in- 
ference from  the  implied  confession,  but  the  court  proceeds  thereupon 
to  pass  the  sentence  of  the  law.  Commonwealth  v.  liorton,  9  Pick. 
206. 

In  Commonwealth  v.  Adams,  6  Gray,  359,  the  complaint  was  found- 
ed upon  St.  1855,  c.  315,  §  35,  which  provided  that  "no  admission  of 
the  defendant,  made  in  court,  shall  be  received  on  the  trial,  without 
the  consent  of  the  prosecutor,  except  a  plea  of  guilty."  The  defend- 
ant pleaded  nolo  contendere  in  the  police  court,  but  the  record  did  not 
show  that  the  plea  was  received  with  the  consent  of  the  prosecutor. 
This  court  held  that  such  consent  must  appear  of  record,  and  that, 
as  it  did  not  so  appear,  judgment  entered  upon  his  plea  by  the  court 
of  common  pleas  to  which  the  defendant  had  appealed,  was  erroneous, 
and  that  he  had  the  right  to  plead  anew,  and  to  be  tried  by  a  jury. 

Applying  these  principles  to  the  case  at  bar,  it  follows  that,  if  it  ap- 
peared by  the  record  of  the  police  court,  to  which  the  complaint  was 
made,  that  the  defendant's  plea  of  nolo  contendere  was  accepted  by 
the  court,  the  superior  court,  upon  appeal,  could  sentence  him  upon 
his  plea,  and  decline  to  permit  him  to  plead  anew. 

The  only  difficulty  arises  from  the  obscurity  of  the  record  of  the 
police  court.  It  recites  that  the  defendant,  "being  asked  whether  he 
is  guilty  or  not  of  the  offense  within  charged  upon  him,  pleads  nolo 
contendere,  but,  after  hearing  divers  witnesses  duly  sworn  to  testify  the 
whole  truth,  and  fully  understanding  the  defense  of  said  defendant, 
it  is  adjudged  by  the  said  court  that  said  defendant  is  guilty  of  said 
offense."  This  record  does  not  state  that  the  court  accepted  the  plea. 
The  latter  part  of  the  record  above  cited  implies  that  the  court  did  not 
accept  the  plea,  but  proceeded  to  hear  witnesses,  and  adjudged  the 
defendant  to  be  guilty,  as  if  he  had  pleaded  "not  guilty,"  or  had  stood 
mute.  If  the  record  had  gta±pr1  thaf  f]-|p  ripfpnrlanf  pleads  nolo  con- 
tendere, and  thereupon  the  co'cii  L  paijjcij  bcntence  upon  him,  it  might  be 
held  that  it  showed  an  accepted  plea,  although  not  directly  stated  to 
have  been  accepted,  because  in  sudixage  the  acfeion  of  the  court  upon 
the  plea  would  import  that  it  was  accepted.  But  in  this  case  the  rec- 
ord implies,  not  that  the  court  passed:_«entence_U£on_thejDlea  of  nolo 
contendere,  but  upon  an  adjudication,  after  hearing  witnesses,  that 
the  ripfnnrlnni-  ^^r^ei  gT'l^v  To  say  the  Icast,  the  record  does  not  cer- 
tainly show  that  the  plea  was  accepted  and  sentence  passed  thereupon ; 
and  we  are  of  opinion  that  the  defendant  had  the  right  to  plead  anew 
in  the  superior  court,  and  to  have  a  trial  by  jury. 

Exceptions  sustained. ^^ 

11  See,  also,  Commonwealtli  v.  Holstiiie,  132  Pa.  357,  19  Atl.  273  (1890). 

In  some  states  statutes  provide  that  in  capital  cases  tbe  plea  of  guilty  shall 
not  be  received.     State  v.  Genz,  57  N.  J.  Law,  459,  31  Atl.  1037  (1895). 

"B.v  a  plea  of  guilty  the  defendant  confesses  himself  guilty  in  manner  and 
form  as  charged  in  the  indictment ;    and  if  the  indictment  charges  uo  offense 


Ch.  11) 


ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  181 


ANONYMOUS. 
(Court  of  King's  Bench,  1G91.    4  Mod.  Gl.) 
The  defendant,  some  years  since,  killed  one  J.  S.  and  fled  for  the 
same      He  appeared,  and  was  tried  the  last  assizes  m  H..  and  found 
guilty  of  murder;    and  being  broughlUa-thtrtar,  he  pleaded  his  par- 
don.    *  ..*     *'' 

The  pardon  was  allowed.^^ 


SECTION  2.-NOLLE  PROSEQUI  AND  MOTION  TO  QUASH 


STATE  V.  SMITH. 

(Supreme  Judicial   Court  of  New   Hampsliire,   1870.     49  N.   IL   155,   G   Am. 

Rep.  4S0.) 

Five  indictments  were  found  March  term,  1869,  against  Willard 
Smith,  three  of  _th^  for  selling  liquor,  one  for  keepmg  liquor  for 
sale  and  one  for _being:J-xau««©u^ler.~At  March  term,  1869,  re- 
spondent pleaded  "not  guilty."  At  the  September  term,  the  solicitor 
stated  that  he  believed  that  the  respondent  had  ceased  the  sale  ot 
liquor  and  that  he  had  arranged  with  respondent's  counsel  that,  if 
the  respondent  pleaded  nolo  contendere  to  all  the  indictments,  the  state 
would  at  this  time  move  for  sentence  on  only  one  indictment,  reserv- 
ino-  the  right  to  bring  forward  the  other  indictments  and  move  for 
sentence  if  the  respondent  should,  in  future,  violate  the  liquor  law. 
Thereupon  Peter  .^liprm^r^^^"ved  for  leave  to  aj3p£ai^  aa-d  prosecute 
the  indictments,  ;^1kging  that  he  ^iiasOlie^com^laimnt^and  entitled  to 
half  tli^-fin^srand  that  respondent  has  not  ceased  the  sale  of  hquor. 
Sherman  also  moved  that,  if  necessary,  to  entitle  him  to  appear,  or  to 
receive  half  the  fine,  the  indictments  might  be  so  amended  as  to  aver 
that  he  was  the  complainant.     The  solicitor  and  the  respondent  both 

objected.  •  •        ^     u 

For  the  purpose  of  allowing  the  questions  thus  arising  to  be  re- 
served, it  was  ruled  pro  forma,  and  subject  to  exception,  that  Sher- 

a-ainst  the  bixv,  none  is  confessed."     McEnery,  J.,  in  State  v.  Watson,  41  La. 
Ann.  509.  7  South.  12G  (1889). 

12  Part  of  this  case  is  omitted. 

13  '•Hawkins,  bk.  2.  c.  37,  §  59,  says:  'But  it  is  certaji^that  a  manma^Q^iive 
the  benefit  of  a  pardon  under  the  gvef^^^e^K-iisv^heTronr^V^^h^^^^^^^^^ 
pardon  doth  not  plead  it,  but  takes  the  general  issue,  after  which  he  shall  not 
?e£rt  to  the  pardon.'  In  section  G7  he  says:  'An  exception  is  made  of  a  par- 
don after  pita  '  A  court  would  undoubtedly  at  this  day  permit  a  pardon  to  be 
nsSiaffer  the  general  issue.  Still,  where  the  benefit  is  to  be  obtained  through 
?hf  a'genc^'of 'the'ciurt.  it  must  be  brought  regularly  to  the  -tic^o  that 
tribunal."     :^Iarshall,  C.  J.,  in  U.  S.  v.  Wilson,  7  Pet.  161,  8  L.  Ed.  640  (lS.i«iK 


]  82  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Ch.  11 

man's  motions  should  be  granted,  if  it  should  hereafter  be  made  to 
appear,  by  proper  proof,  that  he  was  complainant. 

Ccse  reserved. 

]\i.SMiTH,  J.^*  No  question  is  made,  by  the  counsel  on  either  side, 
as  to  the  general  discretionafy  power  of  tirs  prosecuting  officer,  in  this 
state,  to  enter^.a^^Qlle~prnH^ui  in  ordinary  indictments  instituted  in  the 
nauie  of- the  state^  This  power  such  officer  exercises  virtute  of- 
ficii, frequently  before  a  jury  is  impaneled,  and  sometimes  while  the 
case  is  on  trial  before  the  jury,  with  the  consent  of  the  respondent, 
and  sometimes  after  a  verdict  is  rendered  against  the  prisoner. 

It  may  be  that  the  prosecuting  officer  finds  his  indictment  defective 
in  form  or  substance,  and  that  he  may  wish  to  procure  a  better  one,  or 
he  may  discover  that  the  evidence  will  not  sustain  the  charge  as  al- 
leged, and  a  change  may  be  requisite  to  conform  to  the  actual  proof. 
There  may  be  various  reasons  for  discontinuing  the  prosecution,  all 
which  he  must  determine,  being  controlled  by  well-settled  principles 
of  law  and  practice,  and  a  sound  legal  discretion.  It  is  not  to  be  pre- 
sumed that  this  officer  will  voluntarily  consent  to  any  discontinuance 
which  will  materially  injure  the  rights  of  the  prisoner,  or  that  he  will 
violate  knowingly  his  official  trust,  or  in  any  way  act  corruptly  or  op- 
pressively. 

Generally,  whether  a  jury  shall  be  impaneled,  or  not,  depends  upon 
the  determination  of  the  prosecuting  officer ;  but,  when  a  jury  is  or- 
ganized and  the  trial  commences,  the  respondent  then  acquires  new 
rights,  which  the  court  will  protect.  It  may  be  regarded  as  the  re- 
spondent's right  to  have  the  jury  pass  upon  the  facts  of  his  case,  be- 
cause their  verdict  becomes  a  bar  to  another  indictment  for  the  same 
ofifense,  and  a  nolle  prosequi  will  not  thus  operate  for  the  prisoner's 
benefit.  Therefore,  in  this  state  of  the  proceedings,  the  prisoner  hav- 
ing a  right  to  insist  upon  a  verdict  upon  the  whole  evidence  of  the 
case,  of  course,  there  can  be  no  discontinuance  of  the  prosecution  ex- 
cept upon  the  prisoner's  express  consent.^ ^ 

These  elementary  principles  are  discussed  in  Aaron  Burr's   Trial, 

14  Part  of  this  case  is  omitted. 

15  Accord:  Commonwealth  v.  Scott.  121  Mass.  33  (1876).  But  see  State  v. 
Roe,  12  Vt.  93  (1^0) ;   Wilson  v.  Commonwealth,  3  Bush  (Ky.)  10.5  (1867). 

"Any  part  of  a  count,  which  is  in  its  nature  severable  from  the  rest,  may  be 
removed  by  nolle  prosequi,  and  the  remainder  stand."  Peters,  C.  J.,  in  State 
V.  Bean,  77  Me.  487  (188.5). 

"The  power  of  the  court  to  order  the  representative  of  the  state  to  enter 
a  nolle  prosequi  upon  an  indictment  presents  a  different  question.  At  the 
common  law  only  the  Attorney  General  could  exercise  this  power,  and  in 
doing  so  was  beyond  the  power  or  control  of  the  court.  1  Arch.  Cr.  Plead. 
(Pomeroy's  Notes)  316 ;  People  v.  McLeod,  1  Hill  [N.  Y.]  377  [37  Am.  Dec.  328] ; 
State  V.  Graham,  41  N.  J.  Law,  15  [32  Am.  Rep.  174]."  Knapp,  J.,  in  State 
V.  Hickling,  45  N.  J.  Law,  154  (1883). 

"There  seems  no  good  reason  why  the  motion  of  the  attorney  for  the  gov- 
ernment (to  strike  off  an  entry  of  nol.  pros,  from  the  docket)  should  not 
have  been  granted,  and  in  granting  it  the  court  took  especial  care  that  the 


Ch.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  183 

seriatim ;  also  in  Commonwealth  v.  Tuck,  20  Pick.  365,  and  other 
cases  cited  by  respondent's  counsel.  In  the  latter  case.  Chief  Justice 
Shaw  claims  the  power  to  the  Attorney  General,  or  other  prosecuting 
officer,  to  enter  a  nolle  prosequi  after  verdict  against  the  prisoner,  and 
says  such  a  practice  has  prevailed  for  many  years,  and  is  found  highly 
useful  to  the  due  administration  of  the  criminal  law.  It  may  be  ascer- 
tained that  the  party  convicted  may  still  be  innocent.  It  may  become 
important  to  use  him  as  a  witness  against  more  flagrant  offenders. 
The  power  to  enter  a  nolle  prosequi  exists  in  the  prosecuting  officer. 
He  exerts  it  upon  his  official  responsibility.  The  court  has  no  right 
to  interfer  in  its  exercise.  They  can  only  judge  of  the  effect  of  the 
act,  when  done,  or  of  the  legal  consequences  which  may  follow  from 
it.  The  court  wnll  take  care  that  it  shall  not  operate  to  the  prejudice  of 
the  respondent's  rights.  Commonwealth  v.  F.  O.  J.  Smith,  98  Mass. 
10 ;   1  Chitty's  Crim.  Law,  479  and  845. 

The  counsel  for  the  prosecutor,  Sherman,  claims  the  right  for  his 
client  to  interfere  with  the  practice  of  the  solicitor  in  this  particular 
case,  and  asked  for  leave  of  the  court  to  be  granted  to  him  to  appear 
and  prosecute  these  indictments.  Under  a  fair  construction  of  sec- 
tion 21  of  chapter  99  of  the  General  Statutes,  we  think  it  was  the 
clear  intent  of  the  Legislature  to  give  him,  who  might  volunteer  to 
prosecute  for  the  violations  of  the  law  embraced  in  this  chapter,  a 
bounty  or  a  reward  equal  to  one-half  the  fines  that  should  be  collected 
by  means  of  such  prosecutions.  As  the  statute  in  this  case  prescribes 
no  new  mode  of  proceeding  under  it,  in  order  to  establish  the  right  of 
the  complainant  to  recover  his  bounty,  it  must  be  presumed  that  he 
must  obtain  his  remedy  according  to  the  ordinary  rules  of  practice,  as 
known  in  our  courts.  It  there4aj;g_cannot  be  presumed  that  the  com- 
plainant can  come  into  court,  and  oppose  Jhe_predetermined  action  of 
the  prosecuting  r>^fi4=*>4:^or  that  he  can  set  up  his  will  ^s  superior  to 
the  fiat  of_the  officer.  Such  a  practice  would  introduce  confusion  into 
this  department  of  the  law.  An  attempt  of  the  kind  indicated  by  the 
prosecutor's  motion  was  lately  made  in  the  Court  of  the  Queen's 
Bench,  in  England,  and  failed  there  for  the  reasons  suggested  by  the 
justices  of  that  court.  Regina  v.  Allen,  1  Best  &  Smith,  101  (Eng. 
C.  L.  Reports,  854).    *    *     * 

Motion  denied. 

prisoner  should  not  suffer  therefrom  in  liis  defense."  Appleton,  .T..  in  State 
V.  Nutting,  39  Me.  362  (I8.00). 

Accord:  Parry  v.  Stivte,  21  Tex.  746  (18.58).  But  see  Henry  v.  Common- 
wealth, 4  Bush  (Ky.)  427  (1SG8) ;    Kistler  v.  State,  64  Ind.  371  (1878). 


184  ARRAIGNMENT,    TLEAS,   AND    MOTIONS.  (Ch.  11 

PEOPLE  V.  DAVIS. 

(Court  of  Appeals  of  New  York,  1874.     5G  N.  T.  95.) 

GrovEr,  J.^®  The  indictment  charged  the  commission  of  the  crime 
at  the  town  of  Brookfield,  in  the  county  of  Madison,  and  within  500 
yards  of  the  boundary  line  between  the  county  of  Otsego  and  the 
county  of  Madison.  The  counsel  for  the  accused  moved  to  quash  it 
because  the  crime  was  not  charged  to  have  been  committed  in  the 
county  of  Otsego.    *    *     * 

The  counsel  for  the  prisoner  also  excepted  to  the  denial  of  his  mo- 
tion to  quash  the  third  count,  or  to  compel  the  prosecutor  to  elect  upon 
which  offense  therein  charged  he  would  proceed.  The  denial  of  this 
motion  was  not  the  proper  subject  of  an  exception.  The  accused  has 
not  a  legal  right  to  have  the  sufficiency  of  an  indictment,  or  of  any 
count  therein,  determTTTc4--ttf»0Tr  niodon'  toquash  or  Igtrit  aside,  or  to 
put  the  prosecutor  to  an  election,  when  more  than  one  offense  is 
charged,  upQnZwhjchhe ^vill^rocScT  msTtTlhe  discretion  of  the 
court  whether  or  not  to  set  aside  a  defective  indictment  upon  motion ; 
and  unless  the  question  is  free  from  doubt,  the  court  ought  not  to  do 
it,  but  leave  the  counsel  to  his  demurrer,  or  motion  in  arrest  of  judg- 
ment.   *    *    * 


STATE  V.  RIFFE. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1S77.     10  W.  Va.  794.) 

MooRE,  Judge,  delivered  the  opinion  of  the  court. ^^ 

An  indictniettt-^was.^ound  in  the  circuit  court  of  Monroe  county 
against  A.  T,  Piffe  for  sfljiiig^  spirituous  liquors,  without  license.  On 
the  18th  October,  1872,  the  defendant  .app€ajxd_and_^lead  not  guilty ; 
and  on  the  16th  October,  1871,  defendant  again  appeared,  and  moved 
the  court  to  quash  said  indirlment,  whTcB  Tnotion  was  sustained,  and 
the  defendant  dischaxged.  Thereupon  the  state  petitioned  for  and 
obtained  from  this  court  a  writ  of  error,  and  in  that  way  presents 
the  case  for  the  adjudication  of  this  court  upon  two  alleged  grounds 
of  error.     *    *    * 

It  was  error  to  qiiaslL.the  indictment,  fnr  t]ip__rpa t;nn  that  the  mo- 
tion canTe  too  late :  the  defendant  having  long  before  plead  to  the  in- 
dictment.   *    *    * 

As  to  the  question  that  the  motion  to  quash  was  made  after  the 
plea  had  been  entered :  The  proper  course  is  to  move  to  quash  before 
pleading,  but  the  court  may,  at  any  time  before  the  trial  upon  the 

16  Part  of  this  ease  is  omitted. 

17  Ttie  arguments  of  counsel  and  parts  of  the  opinion  are  omitted. 


Ch.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  185 

plea,  pern2Jt_the  plea  to  he  vvitljflrawn^rirl  enter  the  motion  to  quash, 
at  the  instance  of  the  (tefendant. 

The  judgment  of  the  circuit  court  should  be  reversed,  with  costs  to 
the  state  against  the  defendant,  and  the  case  remanded  to  the  circuit 
court,  to  be  proceeded  in  according  to  the  principles  enunciated  in  this 
opinion,  and  further  according  to  law. 

Judgment  reversed  and  case  remanded. 


SECTION  3.— PLEA  OF  FORMER  JEOPARDY 


If  they  [the  jurors]  declare  upon  their  oaths  that  they  know  nothing 
of  the  fact,  let  others  be  called  who  do  know  it,  and  if  he  who  put  him- 
self on  the  first  inquest  will  not  put  himself  on  a  new  jury,  let  him  be 
remanded  back  to  penance  till  he  consents  thereto. 

Britton  (Nichol's  Trans.)  lib.  1,  13  b. 


It  is  a  gnoH  p1^  on  appeal  or  indictment  of  felony  to  say  that  he 
was  formerly  arraigned  for  the  same  felony  before  such  justices,  &c., 
and  ac^uitted^and  to  vxuidi-tbe  record ;  for  he  is  not  required  to  have 
the  record  in  hand,  for  this  plea  is  not  a  dilatory  plea,  but  a  plea  in 
bar,  as  appears,  tit.  Coron.  in  Fitz.  P.  232.  M.  20  E.  2.  &c.,  such  plea 
is  a  good  bar,  because  a  man  by  the  common  law  should  not  put  his 
life  twice  in  jeopardy  of  trial  for  the  same  felony,  except  it  be  in  some 
special  case,  of  which  I  will  speak  hereafter.  But  note  that  it  ought  to 
be  the  same  offense,  for  otherwise  his  plea  is  not  to  the  purpose,  and 
therefore  if  two  men  are  indicted  of  felony  as  principals,  and  then  by 
another  indictment  it  is  found  that  one  committed  the  felony  and  the 
other  only  feloniously  received  him  after  the  felony  was  committed, 
and  upon  the  lirst  mdictment  both  are  arraigned  aji^L^acquitted,  and 
then  he  who  is  indictedJa5~g:ccessory  is  arraign£d,~and  he  pleads  that 
he  was  formerly  acquitted_^s  above,  this  plea  should  not  discharge 
him,  because  it  is  not  the  same  offense^  but  a"~TtTfferent  one,  for  it  is 
done  on  different  days,  which  see  titulo  Corone  in  Fitz.  P.  200 ;  anno 
27  hb.  ass.  P.  10,  and  H.  8.  H.  5.  P.  493.  But  if  he^was  indicted  as 
an  accessory  before-tke^offense  committed,  this  acquittal  of  him  as  a 
principal  should  discharge  hnrToFThis  offense  also,  for  it  is  in  manner 
one  offense  although  it  is  done  on  several  days,  for  when  the  felony  is 
committed  by  force  of  command  or  abetment  the  one  who  commands 


186  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Ch.  11 

in  such  case  is  a  party  to  the  principal  felony.    But  it  is  otherwise  with 
the  accessory  after  the  felony  committed,  and  with  this  agrees  Bracton. 
Staunford,  P.  C.  lib.  2,  c.  36,  p.  105. 


9 


-   If  a  man  be  acquitted  on  an  appeal  or  upon  the  indictment,  although 
there  be  error  in  the  process,  the  acquittal  is  good.     But  it  is  different 
where  the  appeal  or  the  indictment  was  not  sufficient,  etc. 
Fitz.  Corone,  fol.  259,  pi.  444. 


HUTCHINSON'S  CASE. 

(Court  of  King's  Bench,  1077.     1  Leach,  C.  C  135,  note.) 

Mr.  Hutchinson,  who  had  killed  Mr.  Colson  in  Portugal,  was  ac- 
quitted there  of  the  murder;  and  being  afterwards  apprehended  in 
England  for  the  same  fact,  and  committed  to  Newgate,  he  was  brought 
into  the  Court  of  King's  Bench  by  habeas  corpus,  where  he  produced 
an  exemplification  of  the  record  of  his  acquittal  in  Portugal ;  but  the 
king  being  very  willing  to  have  him  tried  here  for  the  same  offense,  it 
was  referred  to  the  consideration  of  the  jurlg-f^,  who  nil  agreed  that, 
as  he  had  been  already  acqiiitted_of_the  charge  by  the  law  of  Portugal, 
he  could  not  be  tried  again  for  it  in  EnglanctT*'^ 


? 


JONES  AND  BEYER'S  CASE. 

(Court  of  King's  Bench,   1665.     Kelyng,  52.) 

At  the  Gaol-delivery  in  the  Old  Baily,  19  February,  1665,  John 
Jones  and  Philip  Bever,  were  indicted  for  Burglary  for  breaking  the 
King's  House  at  Whitehall,  and  stealing  from  thence  the  Goods  of 
the  Lord  Cornbury,  and  were  found  not  Guilty.  And  after  were  in- 
dicted for  the  same  Riircr1ary_arif[_gtp piling  tVip  Hnnds  '^f  Mr~~N[TintiP<;y 

And  we  agreed  that  tfiey  being  once  acquitted  for  the  Burglary,  could 
not  be  indicted  again  for  the  same  Burglary.  bui:-BwglTt-^e  indicted  for 
stealing  the  Good_sj2f  Mr  Nynnesv  according  as  it  was  formerly  re- 
solved in  Turner's  Case.    Vide  Kelyng,  30.     But  in  this  case  when  we 

18  But  an  acquittal  by  a  court-martial  is  no  bar  to  a  subsequent  prosecution 
before  a  court  of  law.  In  re  Fair  (C.  C.)  100  Fed.  149  (1900).  So  an  act  may 
offend  against  the  law  of  more  than  one  jurisdiction,  in  which  case  a  con- 
viction or  acquittal  in  one  jurisdiction  is  no  bar  to  a  prosecution  in  the  other. 
State  V.  Norman,  16  Utah,  457,  52  Pac.  986  (1898) ;  State  v.  Reid,  115  N.  C. 
741,  20  S.  E.  468  (1894).  Compare  People  v.  Haurahan,  75  Mich.  611,  42  N. 
W.  1124,  4  L.  R.  A.  751  (1889). 


Oh.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  187 

saw  the  Evidence  not  sufficient  to  prove  the  steaHng  of  my  Lord  Corn-  ") 
bury's  Goods,  we  might  have  discharged  the  jury  and  so  taken  no  ' 
Verdict;  ^^    and  then  he  might  have  been  indicted  for  that  Burglary, 
and  steahng  the  Goods  of  Mr,  Nunnesy. 


REX  V.  JANE  D . 

(Court  of  King's  Beuch,  1G70.     Vent.  G9.) 

She  was  indicted  for  steaHng  of  several  things,  and  pleaded  not 
guilty,  and  a  jury  sworn  to  try  her;  the  witnesses,  not  appearing,  were 
suspected  to  be  tampered  witlL  by  the  prisoner ;  and  th£_4ili:y_jvere 
discharged,  ancTTHe  trial  put  off.-"    Vide  1  Inst.  227,  b,  contra. 


WETHEREL  v.  DARLY. 

(Court  of  King's  Beucli,  15So.    4  Coke,  40a.) 

Wetherel  brought  an  appeal^againsi—Darly  of  murder.  The  de- 
fendant pleaded  not  guilty,  and  was  found  guilty  of  homicide,  and 
had  his  clergy;  and  afterwards  was  indicted  of  murder,  and  there- 
upon arratgned~at  the  suitnf  the,  queen  ;  "and  he  pleaded  the  former 
conviction  in  the  app;eSf^Jhe_^uil_of  the  party ;  and  it  was  adjmlged 
a  good  bar.    And  thereupon  he  was  discharged,  for  it  was  a  good  bar 

19  "By  the  ancient  law  if  the  jury   sworn  had  been  particuhirly   charged 
with  a  prisoner,  as  before  is  showed,  it  was  commonly  held     *     *     *     tliey        » 
could  not  be  discharged  before  their  verdict  given  up.     *     *     *     But  nothnig     ^ 
is  more  ordinary  than  after  the  jury  sworn,  and  charged  with  a  prisoner,  and     / 
evidence  given,  yet  if  it  appear  to   the  court  that  some  of  the  evidence  is  • 
kept  hack,  or  taken  off,  or  that  there  may  be  a  fuller  discovery,  and  the  of- 
fense notorious,  as  murder  or  burglary,   and  that  the  evidence,  though   not 
sutticient   to   convict  the   prisoner,   yet   gives    the  court  a   great   and   strong 
suspicion  of  his  guilt,  the  court  may  discharge  the  jury  of  the  prisoner."     2 
Hale,  P.  C.  21)5. 

"Nor  is  it  now  a  question,  nor.  I  hope,  will  it  ever  be  a  questuMi  again, 
whether  in  a  capital  case  the  court  may,  in  their  discretion,  discharge  a  jury 
after  evidence  given  and  concluded  on  tlie  part  of  the  crown,  merely  for 
want  of  sufficient  evidence  to  convict,  and  in  order  to  bring  the  prisoner  to 
a  second  trial."  Foster,  J.,  in  Kinloch's  Case,  Foster,  C.  L.  r>0  (174(j).  See, 
also,  Ilevnolds  v.  State.  3  Ga.  ->:\  (1^7).  Compare  People  v.  Ny  Sam  Chung, 
94  Cal  304,  20  Pac.  (Vt2.  28  Am.  St.  Rep.  120  (1S02) ;  State  v.  Richardson,  47 
S.  C.  IGG.  25  S.  E.  220,  3.5  L.  R.  A.  238  (ISOG) ;  Pizano  v.  State,  20  Tex.  App. 
1.39,  54  Am.  Rep.  511  (ISSG). 

20  Accord:  Wliere  juror  fraudulently  procures  himself  to  be  impaneh^d. 
State  V.  Washington,  89  N.  C.  535.  45  Am.  Rep.  700  (1883).  Where  a  .pu-or 
hecomes  too  ill  during  the  trial  to  attend.  Gardes  v.  U.  S.,  87  Fed.  172.  30  C. 
C.  A.  59G  (1S08).  Where  the  jury  is  discharged  with  consent  of  defendant. 
State  V.  Allen,  46  Conn.  .531  (1870).  AVhere  defendant  himself  has  made  it 
impossible  for  a  valid  verdict  to  be  rendered,  or  a  valid  judgment  entered 
against  him.  People  v.  Iliggius,  59  Cal.  357  (1881).  See,  also,  Simmons  v.  U. 
S.,  142  U.  S.  148,  12  Sup.  Ct.  171.  35  L.  Ed.  90S  (1891). 


188  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Ch.  11 

by  the  common  law,  and  restrained  by  no  statute ;  and  the  reason  is,, 
because  a  man's  hfe  shall  not  be  twice  put  in  jeopardy  for  one  and 
the  same  offense. ^^ 


ANONYMOUS. 
(Assizes,  1351.     Lib.  Ass.  122,  pi.  16.) 

An  indictment  for  the  death  of  W.  White  at  N.  and  he  alleges  a 
record  by  which  it  appeared  formerly__he  was  acquitted  of  the  death  of 
W.  D.  at  E.  and  said  thatjjijs  was  the^a^ieperson,  and  now  offers  the 
record,  &c.  And  other  witnesses  say  thaFTT^^^s  the  same  person. 
Wherefore  it  was  adjudged  that  he  be  acquit,  &c.^* 


SIR  WILLIAM  WITHIPOLE'S  CASE. 

(Court  of  King's  Bench,  1628.     Cro.  Car.  147.) 

The  first  day  of  this  Term  William  Withipole  was  arraigned  upon 
an  indictment  of  murder  found  in  this  vacation  in  Suffolk  before  com- 
missioners of  oyer  et  terminer,  and  certified  hither  by  certiorari ;  and 
upon  hi*;  arraignment  he  desired  to  have  counsel  to  plead  for  him  ore 
tenus,  pretending  he  had  matter  in  law  to  plead.  But  The  Court  de- 
nied it,  unless  he  would  shew  to  them  some  exception  in  law,  for  which 
they  should  see  cause  to  appoint  him  counsel ;  and  then  Mr.  Holborn 
should  be  assigned  for  him:  and  The  Court  said,  any  other  might 
be,  though  not  assigned. 

Afterwards  the  said  Mr.  Holborn,  being  assigned  his  counsel,  mov- 
ed, that  he  ought  not-tQ_be_arraign€4- upQU  this  indictment,  because  he 
had  been_autrefoisarraign  upon  an  inquisition  of  murder  found  before 
the-CQrone£^nd  had  pleaded  thereto,  &c.  and  so  concluded  his  plea  by 
pleading  noTguiltyTo'the  felony.    But  it  was  held  by  All  the  Court, 

21  Part  of  tbis  case  is  omitted. 

Wlien  defendant  obtains  a  new  trial  after  a  conviction  of  manslaughter, 
or  of  murder  in  some  degree  less  than  that  of  which  he  might  have  been  con- 
victed on  an  Indictment  for  murder,  the  authorities  are  in  conflict  on  the 
(luestion  whether  the  conviction  of  manslaughter  was  an  acquittal  of  the 
murder,  so  as  to  bar  a  subsequent  indictment  for  murder  on  the  same  facts. 
See,  for  the  aifirmative.  People  v.  McFarlane,  138  Cal.  481.  71  Pae.  568,  72 
Pae.  48,  61  L.  R.  A.  245  (1903) ;  Rolls  v.  State,  52  Miss.  391  (1876) ;  State 
V.  Belden,  33  Wis.  120.  14  Am.  Rep.  748  (1873).  Contra:  Reg.  v.  Tancock,  13 
Cox  C.  C.  217  (1876) ;  Waller  v.  State.  104  Ga.  505,  30  S.  E.  8.35  (1898) :  State 
V.  Bradley,  67  Vt.  465,  32  Atl.  238  (1894) ;  State  v.  Behimer,  20  Ohio  St. 
572  (1870). 

2  2  "If  the  prisoner  be  now  arraigned  of  a  felony  by  the  name  of  A.  B.  (by 
which  name,  as  also  by  the  name  of  A.  C,  he  is  well  enough  known),  then 
may  he  say  that  he  was  before  time  acquitted  of  the  same  felonie,  before 
such  or  such  justice,  by  the  name  of  A.  B.,  averring  that  he  is  the  same 
person  and  that  he  is  known  by  the  one  and  the  other  calling.  Lib.  Ass.  26, 
pi.  15  &  11  H.  4,  93."     Lamb.  Eireaar.  555. 


Ch.  11)  ARRAIGNMENT,    PLEAS,   AND    MOTIONS.  189 

that  this  was  no  cause  of  plea :  for  where  he  is  not  convicted  or  ac- 
quitted, he  m'^y  hf>  arraiompH  iigon  a  new  indictment  "Brrt-to  avoid 
that  doubt,  that  he  should  not  be  questioned  upon  both,  it  was  ruled, 
that  the  first  should  be  quashed  as  insufficient.    *    *    *  -^ 


STATE  V.  BENHAM.O^'-^  "^  7>C:^^r"'^ 

(Supreme  Court  of  Errors  of  Conuecticut,  1829^   7  Conn.  414.) 

WiLiviAMS,  J.-*  The  statute,  upon  which  this  information  is  found- 
ed, enacts :  "That  if  any  person  shall  have  in  possession,  or  receive 
from  any  other  person,  any  forged  or  counterfeited  promissory  note 
or  bill,  for  the  payment  of  money,  with  intention  to  utter  or  pass  the 
same,  or  to  permit,  cause  or  procure  the  same  to  be  uttered  or  passed, 
with  intention  to  defraud  any  person,  or  body  politic  or  corporate, 
knowing  the  same  to  be  forged  or  counterfeited ;  every  such  person, 
so  offending,  being  thereof  duly  convicted,  shall  suffer  imprisonment," 
etc.  St.  157,  tit.  23,  §  35.  The  prisoner^  had  Jn  his  possession,  at  one 
time,  several  bank  notes  or  bills^ofdifferent  banks,  which  were  taken 
from  him  at  one  time.     He  has  been  tried  for  having  one  of  them  in 


his  possession,  and  Qonvictedj__§iid  the  question^~naW— !«■,  whether  he 
can  be  again  tried  and  rmryxrtrr\  for  pon-iCTAiiTg  each  of  the  other  notes 
of  the  different  hank^^  wfij^h  he  ^lad  at  that_time~  In  other  words,  is 
the  possession  of  each  bill  or  note,  holden  at  one  and  at  the  same  time, 
a  distinct  offense,  and  punishable  as  a  distinct  crime? 

Until  the  late  revision  of  our  statutes,  it  was  not  punishable  by  stat- 
ute to  have  in  one's  possession  forged  notes  or  counterfeited  coin. 
The  offense  consisted  in  uttering  or  putting  them  off.  Now  the  pos- 
session is  punishable  in  the  same  manner  as  the  offense  of  uttering 
them  is.  But  it  cannot  be  supposed  that  the  Legislature  intended  to 
punish  the  offense  of  possessing  such  bills  or  notes,  or  coin,  more 
severely  than  the  crime  of  putting  them  off ;  or  that  they  should  pun- 
ish the  man.  who  barely  intended  to  defraud,  but  had  not  yet  offered 
to,  more  severely  than  the  one  who  had  put  that  intent  into  execution. 
And  if  Benham  had  put  off  these  two  notes  to  one  person,  at  one  time, 
it  cannot  be  claimed  that  he  could  be  convicted  of  more  than  one  of- 
fense. And  yet  it  is  claimed  that  having  them  in  his  possession,  al- 
though he  has  never  offered  to  put  them  off,  he  may  be  punished  for 
more  than  one  offense. 

In  support  of  this  it  is  said  that  the  notes  are  issued  by  different 
banks,  and  the  intent  charged  is  to  defraud  the  two  different  banks 
specified,  viz.,  the  Troy  Bank  and  the  Mechanics'  Bank,  as  well  as  the 
persons  to  whom  the  notes  might  be  put  off.  If  a  charge  of  defraud- 
ing the  several  banks  constitutes  two  distinct  offenses,  then  the  offense 

2  3  Part  of  this  case  is  omitted. 

2  4  The  statement  and  the  arguments  of  counsel  are  omitted. 


190  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Cll.  11 

of  uttering;  these  two  notes  to  the  same  person,  at  the  same  time,  would 
be  two  otienses ;  because  the  intent  might  properly  be  charged  as  an 
intent  to  defraud  each  of  the  banks,  as  well  as  the  persons  to  whom 
they  were  put  off. 

But,  as  in  that  case,  the  putting  oft"  a  note,  with  intent  to  defraud 
the  persons  to  whom  it  was  put  off,  would  be  sufficient  to  convict, 
whether  there  was  any  attempt  to  defraud  the  bank  or  not,  as  was  re- 
cently decided  in  England,  by  the  twelve  judges;  so  in  this  case,  as 
it  is  charged  in  both  informations  that  the  intention  was  to  defraud 
the  persons  to  whom  the  notes  might  be  put  off,  that  would  be  suffi- 
cient to  justify  the  conviction;  and  all  that  is  necessary  to  constitute 
the  identity  of  the  offense  is  that  the  same  evidence  would  convict. 
Here  the  same  evidence  of  possession  exists  in  both  cases ;  the  same 
general  attempt  to  defraud  the  persons  to  whom  they  may  be  passed. 
The  act  of  possessing  the  several  notes,  then,  must  be  one  and  the 
same  offense,  as  much  as  the  act  of  stealing  a  number  of  articles,  at 
the  same  time  and  place. 

It  was  admitted  in  argument  that  he  who  had  counterfeit  coins  in 
his  possession  could  not,  under  the  thirty-second  section,  be  punished, 
as  for  distinct  offenses,  for  each  piece  of  counterfeit  coin  he  might 
have.  The  offense  is,  certainly,  of  the  same  character  with  this ;  and 
it  is  difficult  to  believe  that  the  Legislature  intended  to  punish  them 
in  so  different  a  manner.  It  is  true  that  in  that  section  the  statute 
speaks  of  gold  and  silver  coins ;  but  it  will  hardly  be  contended  that 
if  a  person  has  a  single  counterfeit  eagle  in  his  possession,  with  in- 
tent to  pass  it  knowing  that  it  is  counterfeit,  he  is  not  within  the  stat- 
ute. The  difference  in  phraseology,  therefore,  it  is  believed,  will  make 
no  difference  in  the  construction.  The  object  of  the  Legislature,  in 
both  cases,  is  to  prevent  a  person  from  altering  or  having  in  his  pos- 
session base  money.  And  it  has  been  decided  that  a  person  indicted  for 
stealing  nine  one  pound  notes,  may  be  convicted  upon  proof  of  steal- 
ing only  one.  Rex  v.  Johnson,  3  Man.  &  Selw.  539,  548 ;  Rex  v.  Clark, 
1  Brod.  &  Bing.  473.  There  the  substance  of  the  offense  is  stealing 
notes ;  here  the  substance  of  the  offense  is  having  in  possession  coun- 
terfeit bills  or  notes.  The  number  may  add  to  the  evidence  of  guilt, 
but  not  to  the  number  of  the  offenses.  In  an  action  for  the  penalty 
for  insuring  tickets  in  the  lottery,  where  ten  tickets  were  insured  at 
one  and  the  same  time,  Lord  Kenyon  held  that  but  one  penalty  could  be 
recovered.    Holland  q.  t.  v.  Duffin,  Peake's  Ca.  58. 

This  information  might  have  specified  each  note  which  the  prisoner 
had  in  his  possession,  as  was  done  in  several  cases  cited  in  King  v. 
Sutton,  Ca.  tem.  Hardw.  372.  Had  that  been  done,  it  would  hardly  be 
claimed  that  there  could  have  been  several  punishments.  The  offense, 
thei^i^sone  and  the  sanie  offense. 

Anotlier  oDjection  was  made  to  the  plea,  but  not  much  insisted  on, 
that,  if  this  is  the  same  offense,  it  is  not  pleaded  so  as  to  avail  the  de- 
fendant.    The  plea  is  that  a  verdict  was  rendered,  and  judgment  now 


Ch,  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  191 

impends.  And  here  it  must  be  admitted  that  a  previous  acquittal,  con- 
viction, or  attainder  is  a  good  bar ;  but  what  shall  be  the  evidence  of 
such  conviction  is  the  inquiry. 

That  a  person  had  been  arraigQed__k)r  the  same  offense  was  early 
held  to  be  no  bar  to  a  subsc(|ucnt  indictment.  Withipole's  Case,  Cro. 
Car.  147.  Nor  that  a  nolle  prosequi  had  been  entered  by  the  attorney 
for  the  government.  Commomv^^ltk-At-  Wheeler  et  al,  2  Mass.  172.-'' 
Nor  that  tlfeluryTVad  hcrji  fH^.-lynrcrt^d,  at  thp  request  of  the  prisoner. 
Rex  v.  Kinlock,  1  Wils.  157.  Nor  even  where  the  jury  have  been 
discharged  because  they  could  not  agree,  withoutcbnsent  of  the  pris- 
oner. Slate— V.  Woodruff,  2  Day7~50J:,  2  Ant^  Dec.  122 ;  People  v. 
Olcott,  2  Johns.  Cas.  (N.  Y.)  301,  1  Am.  Dec.  108.  Nor  can  the 
pendency  of  another  indictmentbe  pleaded  in  abatement,  as  it  may 
in  a  case  of  a  prosecution  foia  penatty-  Rex  v.  Stratton,  Doug.  240  ; 
Regina  v.  Goddard  et  al.,  2  Ld.  Raym.  930,  s.  c.  3  Salk.  171.  Nor  can 
a  conviction  or  an  acquittal  be  pleaded,  if  the  former  indictment  was 
not  sufficient  to  authorize  punisrb«i£Qt^[^Tr~a^6onviction  had  ensued. 
King  V.  Taylor,  3  B.  &  C.  502  ;  4  Co.  45T^€44tt.  Cr.  L.  462.  And  it 
has  been  said  that  if  the  defendant  reiTiains_after  conviction,  without 
requesting  judgment,  or  praying  j^tf-xIirgyT^he  could  not  plead  such 
conviction  to  a  new  indictuient.     2  Hale's  P.  C.  252 ;   Stark.  C.  L.  364. 

That  no  one,  however,  shall  be  put  in  jeopardy  twice  for  the  same 
offense,  is  a  universal  maxim  (4  Bla.  Comm.  329),  thought  worthy  to 
be  incorporated,  to  a  certain  extent,  into  the  Constitution  of  the  United 
States.  And  that  an  acquittal  or  conviction,  by  a  court  having  juris- 
diction, on  a  sufficient  indictment  or  information,  is  in  all  cases  what- 
soever a  bar,  is  equally  clear.  2  Hawk.  P.  C.  bk.  2,  c.  30,  §  1 ;  2  Leon. 
161.  Still  the  question  returns,  what  is  sufficient  evidence?  Is  it  the 
verdict,  or  the  verdict  and  judgment?  It  is  said  by  Chitty  that  there 
must  be  a  legal  acquittal  by  judgment  upon  trial,  by  verdict  of  a  petty 
jury,  or  by  battle.  1  Chitt.  C.  L.  457.  Tucker,  in  his  notes  to  Black- 
stone,  says  the  plea  must  state  the  indictment,  arraignment,  plea,  and 
judgment  legitimo  modo.  4  Bla.  Comm.  336,  by  Tucker.  And  in  the 
forms  of  pleading  a  judgment  is  set  out,  or  that  the  defendant  has  had 
his  clergy.  Stark.  C.  L.  352.  And  the  general  rule  certainly  is  that 
a  verdict  without  a  judgment  is  not  evidence,  as  it  may  be  arro^  ■■ 
The  record  of  the  judgment,  therefore,  must  be  adduced,  to  exclude  a 
witness.     Swift's  Ev.  18;    1  Stark.  Ev.  183,  246;    2  Stark.  Ev.  716; 


25  Contra:  Where  the  nolle  prosequi  has  been  entered  after  the  jury  has 
been  iniitaneled.  Reynolds  v.  State.  3  Ga.  53  (1847) ;  U.  S.  v.  Farring.  4 
Craiich.  C.  C.  4G5,  Fed.  Cas.  No.  15,075  (1SS4).  Unless  the  nolle  prosequi  was 
entered  because  the  indictment  was  insutlicient  to  warrant  a  conviction. 
Walton  V.  State,  3  Sneed  (Tenn.)  (>87  (185C).  Or  because  of  a  material  vari- 
ance.   Martha  v.  State,  20  Ala.  72  (1855). 

'•There  is,  in  point  of  law,  a  difference  between  the  plea  of  autrefois  con- 
vict, and  autrefois  attaint  of  the  same  offense.  The  former  may  be  where 
there  has  been  no  judgment;  tlie  latter  is  founded  upon  a  judgment."  Story, 
J.,  in  U.  S.  V.  Gilbert,  2  Sumn.  40,  Fed.  Cas.  No.  15,20i  (1834). 


192  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Ch.  11 

Lee  V.  Gansel,  Cowp.  3 ;  Commonwealth  v.  Green,  17  Mass.  537.  So 
proof  of  conviction  of  the  principal,  on  the  trial  of  the  accessory,  must 
be  by  judgment  upon  a  verdict  or  confession,  or  by  outlawry.  4  Co. 
43 ;    Goff  V.  Byby  et  al.,  Cro.  EHz.  540. 

On  the  other  hand,  it  is  said,  in  4  Bla.  Comm.  335,  that  when  one 
is  found  not  guilty,  on  an  indictment  or  other  prosecution,  he  may 
plead  such  acquittal  in  bar  of  any  subsequent  prosecution.  And  an 
acquittal  has  been  held  sufficient  to  entitle  bail  to  their  discharge  be- 
fore judgment  is  entered.  Rex  v.  Spenser,  1  Wils.  315.  And  in  the 
case  of  Queen  v.  Goddard,  3  Ld.  Raym.  931,  s.  c.  3  Salk.  173,  Holt, 
C.  J.,  says  that  another  indictment  pending  could  not  be  pleaded  in 
abatement,  even  after  the  accused  had  been  found  guilty  upon  it,  but 
it  must  be  pleaded  in  bar.  And  Judge  Dane,  after  citing  an  authority 
to  show  that  a  judgment  is  necessary,  makes  a  quaere;  for,  says  he, 
when  the  defendant  has  once  stood  trial  for  his  life,  he  has  been  clearly 
once  in  jeopardy,  though  there  has  been  no  judgment  or  clergy.  6 
Dane's  Abr.  531.  And  in  Brooke's  Case,  4  Co.  40,  after  verdict  of 
guilty,  on  an  appeal  and  motion  in  arrest,  on  an  indictment  at  the  suit 
of  the  king,  it  was  claimed  that  the  defendant  could  not  be  charged 
again,  and  it  was  resolved  that,  "if  the  count  had  been  sufficient,  then 
being  convicted  at  the  suit  of  the  party,  he  should  not  be  again  con- 
victed at  the  suit  of  the  king ;  and  the  same  principle  is  recognized,  in 
Vaux's  Case,  4  Co.  45.  1  Chitt.  C.  L.  463,  464,  et  seq.  Had  not  a 
verdict  been  sufficient,  it  is  not  easy  to  see  how  the  sufficiency  of  the 
count  came  to  be  considered.  And  in  Withipole's  Case,  Cro.  Car.  147, 
the  court  quashed  one  of  two  indictments,  lest  the  prisoner  should  be 
questioned  on  both.  And  in  Rex  v.  Kinlock,  1  Wils.  157,  Wright,  J., 
against  the  other  judges,  held  that  to  call  a  new  jury  would  be  to  put 
the  prisoner  twice  in  jeopardy,  although  the  former  jury  was  dis- 
charged at  his  request;  and  upon  report  thereof  the  prisoner  was 
pardoned. 

An  accessory  may  be  put  upon  trial  before  judgment  against  the 
principal,  but  cannot  be  sentenced  until  after  judgment  against  the 
principal,  as  in  the  recent  Case  of  Elsie  Whipple,  9  Cow.  (N.  Y.)  707. 
And  in  a  civil  case,  where  a  judgment  was  not  rendered,  but  a  verdict 
taken  before  a  justice  was  pleaded  in  bar,  it  was  held  a  valid  bar,  as 
the  justice  could  not  arrest  the  judgment  or  grant  a  new  trial.  Felter 
V.  Mulliner,  2  Johns.  181. 

When,  then,  we  consider  the  extreme  jealousy  which  the  common 
law  evinces  on  this  subject,  supported  by  the  provisions  of  the  Con- 
stitution ;  when  we  find  no  case  where  a  prosecution  has  been  sustained 
after  verdict  upon  a  different  count,  and  amidst  so  much  doubt  wheth- 
er the  legal  principle  as  to  the  necessity  of  a  judgment  has  been  ex- 
tended to  cases  of  this  kind ;  when  we  further  find  that  both  these 
prosecutions  are  in  the  same  court,  and  no  claim  is  made  that  judg- 
ment cannot  be  rendered  upon  the  first  verdict — I  think  the  more  cor- 
rect rule  to  adopt  is  that  under  gnrb  n'r^ni-ngtanres  a  secojid  informa- 


Ch.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  193 

tion  ought  nnta<x>>e  .supported,  althoiioh  judgment  hadjiot  been  actu- 
ally entered  upon  the  first  at  the  time  of  pleading. 

I  would,  therefore,  affirm  the  judgment  of  The  superior  court. 

The  other  Judges  were  of  the  same  opinion ;   Peters,  J.,  doubting. 

Judgment  affirmed. 


CHAMPNEYS'  CASE. 

(York  Assizes,  1837.    2  Lew.  52.) 

The  prisoner,  Champneys,  was  indicted  as  principal  for  delivering  in 
a  false  schedule  to  the  Insolvent  Court,  and  the  otherTTorakling  and 
abettingjiini.-" 

Coltingham,  for  Champneys,  pleaded  oreJteiius_autrefois  acquit,  as 
to  a  part  of  the  goods  alleged  to  have  been  omitted  from  the  schedule. 
*    *     * 

Cottingham  then  proposed  to  give  in  evidence,  to  support  the  re- 
mainder of  the  plea,  a  draught  copy  of  the  former  indictment ;  but  the 
counsel  for  the  prosecution  objected  to  this,  as  the  indictment  itself 
might  be  produced.  He,  however,  offered  to  waive  the  point  if  the 
prisoner's  counsel  would  undertake  to  say  that  it  had  been  examined 
with  the  original  and  was  a  true  copy. 

Patteson,  J.,  concurred  in  the  objection,  observing  that  an  ex- 
amined copy  would  answer  all  the  purposes  of  the  record  itself,  but 
that  without  one  or  the  other  the  evidence  failed. 

Cottingham  then  pressed  upon  the  attention  of  the  court  the  former 
acquittal  of  niampneys,  rnnfengmg  that  an_acc[iuttal  as  to  a  part  was 
good  for  the  whg!e7as  it  involved  the  question  of  a  false  schedule, 
which  was  the  gist  of  the  offense. 

Sir  G.  A.  Lewin  replied,  that  a  man  might  well  be  acquitted  as  to 
some  articles  and  not  as  to  others,  and  that  it  was  obvious,  where 
fraud  was  intended,  that  concealment  as  to  some  might  precede  that 
of  others. 

Patteson,  J.  If  the  articles,  or  any  of  thern,  are  dififerent,  I  am 
bound  to  proceed;  but,  if  the  offense,.shQ^ld  turrPbut  to^besubstan- 
tially  the  sajne  as  that  the~prisonerhas  already  been  acquitted"of.  I 
shall  recommend  the  jury  to  acquit,  wnetner  at  the  lormer  trial  the 
proper  evidence  was  adduced  before  the  jury  or  not  is  wholly  imma- 
terial; for  if,  by  any  possible  evidence  that  could  have  been  adduced, 
he  could  have  been  convicted  on  that  indictment,  he  is  now  entitled 
to  an  acquittal. 

26  Part  of  this  case  is  omitted. 
Mik.Cb.Pb.— 13 


194  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Ch.  11 

ROBERTS  V.  STATE. 
(Supreme  Court  of  Georgia,  1853.     14  Ga.  8,  58  Am.  Dec.  528.) 

The  defendants,  with  others,  were  indicted  for  a  rohhaij^'  committed 
upon  John  Jackson,  of  said  county.  At  March  term,  1853,  they  filed  a 
plea  setting  forth  the  record  of  a  former  indictment  against  them  for 
burglary,  upon  which  they  had  been  tried  and  convicted,  and  which 
they  averred  to  be  the  same  felony,  and  none  other,  for  which  thev 
were  now  indicted.  To  this  plea,  the  Solicitor  General  in  writing  de- 
murred, denying  its  sufficiency  in  law  to  operate  the  acquittal  of  the 
defendants.  Upon  consideration  of  such  demurrer,  the  plea  was  over- 
ruled by  the  court,  and  the  defendants  required  to  answer  over.-' 
*     *     * 

Starnes,  J.,  delivered  the  opinion.     *     *     * 

The  main  fact  stated,  and  on  which  the  plea  rested,  was  that  the 
defendants  had  been  previously  convicted  on  the  charge  of  burglary, 
that  judgment  had  been  rendered  on  said  conviction,  and  that  the  fel- 
ony of  which  they  had  been  so  convicted  was  one  and  the  same  with 
the  felony  of  which  they  then  stood  accused.  Of  course,  the  Solicitor, 
by  so  demurring,  and  admitting  that  this  charge  of  robbery  was  the 
same  felony  as  that  of  which  the  defendants  had  been  convicted,  in- 
tended only  to  admit  that  the  two  indictments  related  to  the  same 
transaction,  and  did  not  mean  to  admit  that  the  charge  was  the  same 
in  each  case.  Taking  this,  then,  as  true,  it  becomes  our  duty  to  make 
the  following  inquiry:  "^A^hpn  ^  pricrn^^r  has  bfpn  inrljrtpd  for  having 
burglariously  broken  ao'^  pnff^]-ed  the  dwelling  of  aiTother  with  intent 
to  steal  the  <Tr.orf^^""^ri  nhnttnin  nf  flip  r.^y]-|f^]-^  and,  inoiFHel^  to  manifest 
such  intent  on  the  trial,  ^roof  be  adf]iiced_jjiat  the  prisoiTer  did  vio- 
lently,   or    1-»y    io-tn-nirlnti'nn     frnt-r|    ||^f    pp"Win    nf-t1-)P    OWUCr,    StcM    SUCh 

0-r.r.rl^^nrl-^-lTrrtif^k^  j  i n  |  I  noJ^  ro|-|YiVtPrl  ^  ^'""j^ after wards  au  indictment 
for  the  robbery  commjtted-at-thc  time  be  found  against  him,  can  he 
then  be  tried,  if  heolead  autrefois  convict,  for  such  robbery  as  a  sep- 
arate offense? 

,- — ^Krg^case  made  by  this  record  invokes  an  answer  from  us  to  this 
question.  The  record,  it  is  true,  does  not  show  that,  upon  the  trial 
of  these  defendants  for  the  burglary,  that  part  of  the  evidence  which 
was  relied  upon  to  show  the  felonious  intent  was  the  same  with  that 
which  was  offered  upon  the  trial  for  robbery ;  but  this  is  in  effect  ad- 
mitted by  the  demurrer  to  the  plea,  as  we  have  shown,  and  thus  the 
question  presented  arises. 

2  7  Parts  of  the  statement  and  opinion  are  omitted. 

"An  acquittal  of  the  charge  of  larceny  of  certain  goods  is  not  a  bar  to  an 
indictment  for  the  larceny  of  certain  other  goods,  although  the  last-men- 
tioned goods  are  of  such  a  character  that  the  language  of  the  first  indictment 
might  describe  them."  Per  Curiam,  in  Commonwealth  v.  Sutherland,  10!> 
Mass.  343  (1872). 


Ch.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  195 

Of  the  sufficiency  of  the  plea  of  former  acquittal  or  conviction,  the 
following  is  said  to  be  a  true  test,  viz. :  Whenever  the  prisoner  might 
have  been  convicted  on  the  first  indictment,  by  the  evidence  necessary 
to  support  the  second ;  or,  in  other  words,  where  the  evidence  neces- 
sary to  support  the  second  indictment  would  have  sustained  the  first. 
Arch.  C.  P.  106 ;  Rex  v.  Clark,  1  B.  &  B.  473 ;  People  v.  Barrett,  1 
Johns.  (N.  Y.)  GG;  Com.  v.  Cunningham,  13  Mass.  215;  Hite  v.  State, 
9  Yerg.  357;  People  v.  McGowan,  17  Wend.  386;  State  v.  Risher, 
1  Rich.  Law,  222;  Durham  v.  People,  4  Scamm.  172;  Com.  v.  Wade, 
17  Pick.  400;  2  Hawks,  98. 

This  may  be  said  to  be  the  case  in  all  compound  felonies.  1  Ross  on 
C.  89,  note. 

There  seems  to  be  some  difficulty  in  applying  this  rule  (as  above 
expressed)  in  all  cases.  It  may  be  said  that  the  prisoner  could  not 
have  been  convicted  on  the  indictment  for  burglary,  by  the  proof  nec- 
essary to  convict  on  the  indictment  for  robbery ;  and  the  evidence  nec- 
essary to  support  the  indictment  for  robbery  would  not  have  insured 
a  conviction  on  the  prosecution  for  burglary.  If  the  indictment  for 
robbery,  however,  had  been  first  tried,  then,  upon  the  trial  of  the 
burglary,  the  proof  necessary  to  support  that  last  trial  would  have  been 
such  as  would  have  been  sufficient  to  sustain  the  first  prosecution,  be- 
cause, after  proof  of  the  breaking  and  entering  by  the  prisoner,  the 
state  would  have  proceeded  to  prove  the  violent  stealing  from  the 
prosecutor,  in  order  to  show  the  breaking,  etc.,  with  felonious  intent ; 
and  this  would  have  been  proof  of  the  robbery. 

To  avoid  any  confusion  on  this  subject,  we  adopt  the  rule  as  it  is 
otherwise  more  generally,  and  perhaps  more  accurately,  expressed, 
viz.,  that  the  plea  of  autrefois  acquit  or  convict  is  sufficient,  whenever 
the  proof  shows  tla^  gprf^prl  ra^e  tnJ2Pthp  same  transaction  with  the 
first.  Fiddler  v.  State,  7  HumphTTf'enn-)  508;  Thach.  206,  207. 
That  rule  is  decisivejxLthis  caag.  ^  *    *    * 

The  rule  above  stated  by  me  is  that  which  is  prescribed  for  this 
case,  and  it  must  be  the  law  for  these  defendants. 

This  record  shows  that  the  transaction  referred  to  in  the  indictment 
for  burglary  is  the  same  with  that  in  the  prosecution  for  robbery,  in- 
asmuch as  the  pleader,  in  order  to  show  the  felonious  intent,  has  made 
it  necessary  in  the  former  to  prove  the  circumstances  of  the  stealing, 
and  thus  to  involve  the  same  transaction  (the  robbery)  in  both  cases. 
If  the  pleader  had  alleged  the  breaking  w^ith  felonious  intent  (which 
constitutes  burglary),  and  had  been  able  to  prove,  otherwise  than  by 
proof  of  the  robbery,  that  the  felonious  intent  was  manifested,  then  the 
two  might  not  have  constituted  the  same  transaction.  But  this  was 
settled  by  the  demurrer;  and  the  state's  counsel,  having  elected  to 
make  his  proof  of  felonious  intent  in  this  way,  has  put  his  case  within 
the  application  of  the  rule. 

In  passing  sentence  upon  these  defendants,  after  the  conviction  in 
the  case  of  burglary,  the  court  no  doubt  graduated  the  penalty  accord- 


196  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Cb.  11 

ing  to  the  circumstances  of  the  transaction,  thus  taking  into  considera- 
tion the  proof  of  the  robbery;  for  it  is  to  be  presumed  that  a  break- 
ing and  entering  of  a  dwelhng  house,  accompanied  by  an  actual  rob- 
bery, would  have  been  more  severely  punished  than  a  breaking  and 
entering  with  an  intent  to  rob  which  was  not  consummated.  If  this 
be  so,  and  the  defendants  have  been  held  to  some  degree  of  punish- 
ment in  consideration  of  the  robbery,  to  txv  theiii^  again  for  it  would 
be,  as  it  were,  to  place  them  in  jeopardy  a  second^time  on  account 
of  the  same  ofFense.  thus  m  some  sort_^aolatiiig  the  fundamental  prin- 
ciple on  which  the  plea  of  autrc^foio  acquit  and  convict  rests.  Hence, 
again,  the  propriety  of  the  rule  which  we  recognize  and  apply. 
On  this  ground,  we  reverse  the  judgment  of  the  court.     *    *  * 


STATE  v.  ROSENBAUM. 

(Appellate  Court  of  Indiana,  1899.     23  Ind.  App.  236,  55  N.  E.  110,  77  Am. 

St.  Rep.  432.) 

Robinson,  J.  Appellee  was  indicted.iar  permitting  a -person  named 
to  be  and  remain  in  his  place  of  bu"inr"i-durin^  prnliibiti^d  hours,  con- 
trary to  the  provisions  of  section  3  of  the  act  of  March  11,  1895  (Acts 
1895,  p.  248).  Appellee  pleaded  in  abatement,  setting  up  a  former  in- 
dictment and  acquittal,  that  the  person  named  in  the  present  indictment 
as  having  been  in  the  '^alnno-wf^'s  in  minpanv  with  the  person  named  in 
the  former  indictment,  and  that  tlie  acts  cSTrrplained  of  in  the  present 
indictment  are  ioenticill  wiLll  Lliose  Lunqjiamed  of  in  tHe  former  in- 
dictment, of  which  he  nad  been  acquitted.  A  demurrer  to  this  plea 
was  overruled,  and  upon  this  ruling  the  appeal  is  based. 

The  question  presented  is,  can  the  proprietor  of  a  place  where  liq- 
uors are  sold,  who  permits  two  or  more  persons  at  the  same  time  to 
be  in  the  room  during  prohibited  hours,  be  prosecuted  for  a  separate 
offense  as  to  each  of  such  persons?  The  Attorney  General,  in  his 
brief,  states  that  he  is  of  the  opinion  that  the  question  must  be  answer- 
ed in  the  negative.  In  Smith  v.  State,  85  Ind.  553,  the  court  said: 
"The  true  test  to  determine  the  sufficiency  or  insufficiency  of  a  plea 
of  former  acquittal  as  a  bar  to  the  pending  prosecution  is  this :  Would 
the  same  evidence  be  necessary  to  secure  a  conviction  in  the  pending, 
as  in  the  former,  prosecution?  If  it  would,  then  the  plea  of  former 
acquittal  would  be  a  complete  bar  to  the  pending  prosecution;  other- 
wise, the  plea  would  not  be  sufficient."  The  case  of  State  v.  Elder, 
65  Ind.  282,  32  Am.  Rep.  69,  states  the  following  rule:  "When  the 
facts  constitute  but  one  offense,  though  it  may  be  susceptible  of  divi- 
sion into  parts,  as  in  larceny  for  stealing  several  articles  of  property 
at  the  same  time,  belonging  to  the  same  person,  a  prosecution  to  final 
judgment  for  stealing  a  part  of  the  articles  will  be  a  bar  to  a  subse- 
quent prosecution  for  stealing  any  other  part  of  the  articles  stolen  by 


Ch.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  197 

the  same  act."  See,  also.  State  v.  Gapen,  17  Ind.  App.  524,  45  N.  E. 
078,  and  47  N.  E.  25;  Davidson  v.  State,  99  Ind.  366 ;  Fritz  v.  State, 
40  Ind.  18 ;  Wininger  v.  State,  13  Ind.  540 ;  Brinkman  v.  State,  57 
Ind.  70.  The  statute  makes  it  unlawful  for  the  proprietor  to  permit 
"any  person  or  persons  other  than  himself  and  family"  to  go  into  the 
room  at  prohibited  times. 

In  the  case  at  bar  the  crime  committed  was  permitting  "persons 
other  than  himself  to  go  into  such  room"  during  prohibited  hours.  It 
was  a  single  offense,  w^ich  cannot  be  split  up  and  prosecuted  in  parts. 
"A  prosecution  for  any  part  ot  a  smgle  crime  bars~Tiirther  prosecu- 
tion based  upon  the  whole  or  a  part  of  the  same  crime.^  Laupher  v. 
State,  14  Ind.  327.    The  appeal  is  not  sustained.-^  / 


MOREY  V.  COMMONWEALTH. 
(Supreme  Judicial  Court  of  Massachusetts,  1S71.    108  Mass.  433.) 

Writ  of  error  to  reverse  t\\Q  judgment  of  the  superior  court  upon  a 
conviction  of  the  plaintiff  in  error  on  an  ijidLClment-iot^adultery.  Plea, 
in  nullo  est  erratum. 

The  record  showed  that  at  September  term,  1867,  of  the  superior 
court  in  Norfolk,  two  indictments  were  found  against  the  plaintiff  in 
error,  the  first  for  lewd  and  lascivious  cohabitation,  and  the  second 
for  adultery.  The  first  indictment  charged  that  he  and  Bridget  Ken- 
nedy, on  October  1,  1806,  and  "from  that  day  continually  to"  August 
1,  1867,  at  Quincy,  "did  lewdly  and  lasciviously  associate  and  cohabit 
together,"  they  "not  being  then  and  there  married  to  each  other."  The 
second  charged,  in  three  counts,  that  on  January  1,  June  1,  and  August 
1,  1867,  respectively,  at  Quincy,  he  committed  adultery  with  Bridget 
Kennedy,  he  "being  then  and  there  a  married  man  and  then  and  there 
having  a  lawful  wife  alive  other  than  the  said  Bridget  Kennedy,"  and 
he  and  said  Bridget  "not  being  then  and  there  lawfully  married  to 
each  other." 

The  record  further  showed  that  at  said  term,  he  and  Bridget  Ken- 
nedy were  tried  together  on  the  first  indictment,  and  found  guilty,  and 
he  was  sentenced  thereon  to  confinement  at  hard  labor  in  the  House 
of  Correction  for  two  years,  and  that  at  the  same  term  he  was  tried 
and  found  guilty  on  the  second  indictment,  and  sentenced  thereon  to 
confinement  at  hard  labor  in  the  House  of  Correction  for  three  years, 
"this  sentence  to  take  effect  from  and  after  the  expiration  of  his  pre- 
vious sentence  at  this  term  of  the  court." 

2  8  See.  also,  Ball  v.  State,  67  Miss.  358,  7  South.  353  (1889) ;  State  v.  Ross. 
4  Lea  (Teim.)  442  (1880) ;    Irvin  v.  State,  7  Tex.  App.  78  (1879). 

A  statute  providing  for  an  increased  penalty  for  a  second  conviction  for 
crime  is  not  invalid,  as  putting  the  offender  twice  in  ieopardv  for  the  same 
offense.    State  v.  Le  Pitre,  54  Wash.  166,  103  Pac.  27  (1909). 


198  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Ch.  11 

The  assignment  of  errors  was  that  the  sentence  on  the  second  in- 
dictment was  wrong-ful,  in  that  the  plaintiff  in  error  "had  heen  previ- 
ously convicted  and  sentenced  to  two  years'  confinement  in  said  House 
of  Correction  for  the  same  acts  for  which  this  sentence  was  awarded." 

H.  ly.  Hazelton,  for  the  plaintiff  in  error.  C.  Allen,  Attorney  Gen- 
eral, for  the  Commonwealth. 

Gray,  J.  A  conviction  or  acquittal  upon  one  indictment  is  no  bar 
to  a  subsequent  conviction  and  sentence  upon  another,  unless  the  evi- 
dence required  to  support  a  conviction  upon  one  of  them  would  have 
been  sufficient  to  warrant  a  conviction  upon  the  other.  The  test  is 
not  whether  the  defendant  has  already  been  tried  for  the  same  act, 
but  whether  he  has  been  put  in  jeopardy  for  the  same  offense.  A 
single  act  may  be  an  offense  against  two  statutes ;  and  if  each  statute 
requires  proof  of  an  additional  fact  which  the  other  does  not,  an  ac- 
quittal or  conviction  under  either  statute  does  not  exempt  the  de- 
fendant from  prosecution  and  punishment  under  the  other. 

An  acquittal  or  conviction  upon  an  indictment  for  murder  is  a  bar 
to  a  subsequent  conviction  upon  an  indictment  for  manslaughter  or  as- 
sault by  the  same  act  by  which  the  murder  was  charged  in  the  first 
indictment  to  have  been  committed,  because  such  a  conviction  might 
have  been  had  upon  the  first  indictment.  And  so,  e  converso,  an  ac- 
quittal or  conviction  of  the  manslaughter  is  a  bar  to  a  subsequent  in- 
dictment for  the  murder.  Commonwealth  v.  Roby,  12  Pick.  49G,  504, 
505,  and  authorities  cited;  1  Stark.  Crim.  PL  (2d  Ed.)  323,  324;  2 
Russell  on  Crimes  (4th  Ed.)  55-59  ;  Rev.  St.  c.  137,  §  11 ;  Gen.  St. 
c.  172,  §  16 ;  Commonwealth  v.  Drum,  19  Pick.  479  ;  Commonwealth 
V.  Squire,  1  Mete.  258,  262 ;  Commonwealth  v.  Lang,  10  Gray,  11 ; 
Commonwealth  v.  Squires,  97  Mass.  59. 

On  the  other  hand,  a  conviction  of  an  assault  with  intent  to  mur- 
der was  held  by  this  court  to  be  no  bar  to  an  indictment  for  murder, 
before  our  statutes  permitted  a  conviction  of  such  an  assault  upon  an 
indictment  for  murder.  Commonwealth  v.  Roby,  12  Pick.  496 ;  St. 
1805,  c.  88,  §  2 ;  Rev.  St.  c.  137,  §  11,  and  commissioners'  note;  Gen. 
St.  c.  172,  §  16. 

A  conviction  of  being  a  common  seller  of  intoxicating  liquors  has 
been  held  to  bar  a  prosecution  for  a  single  sale  of  such  liquors  within 
the  same  time,  upon  the  ground  that  the  lesser  offense,  which  is  fully 
proved  by  evidence  of  the  mere  fact  of  unlawfully  making  a  sale,  is 
merged  in  the  greater  offense ;  but  an  acquittal  of  the  offense  of  be- 
ing a  common  seller  does  not  have  the  like  effect.  Commonwealth  v. 
Jenks,  1  Gray,  490,  492 ;  Commonwealth  v.  Hudson,  14  Gray,  11 ; 
Commonwealth  v.  Mead,  10  Allen,  396. 

It  has  also  been  repeatedly  held  that  the  offenses  of  keeping  a  tene- 
ment used  for  the  illegal  sale  and  illegal  keeping  of  intoxicating  liquors, 
of  illegally  selling  such  liquors,  and  of  doing  secular  business  on  the 
Lord's  day,  are  distinct  offenses,  and  a  conviction  of  the  one  is  no  bar 
to  a  conviction  of  either  of  the  others,  although  the  same  acts  of  sale 


Cll.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  199 

are  relied  on  in  proof  of  each.  Commonwealth  v.  Bubser,  14  Gray, 
83 ;  Commonwealth  v.  Shea,  14  Gray,  386 ;  Commonwealth  v.  Cutler, 
9  Allen,  48(5 ;  Commonwealth  v.  O'Donnell,  8  Allen,  548 ;  Common- 
wealth V.  Trickey,  13  Allen,  559 ;  Commonwealth  v.  Hogan,  97  Mass. 
123 ;   Commonwealth  v.  Sheehan,  105  Mass.  192. 

The  case  now  before  us  cannot  be  distinguished  in  principle  from 
those  just  cited.  The  indictnient  for  lewd  and  lascivious  cohabitation 
contained  no  averment  and  required  noj^root  tiiafetther  of  the  parties 
was  married,  butclid  require  proof  thaTthey  awctr"or  lived  together, 
and  would  not  be  snpportpfj  by  proof  fvf_a^inp;1o^rrpt  art  rvT  nnlaw- 
ful  intercoursCj^  Commonwealth  v.  Calef,  10  Mass.  153.  The  indict- 
ment for  adultery  alleged  and  required  proof  that  the  plaintiff  in  er- 
ror was  married  to  another  woman,  and  w£uild__be_satisfied  by  proof 
of  that  fact  and  of  a_sin<>-le  n*^^  ^^^  unlawful  intercourse/^roof  of  un- 
lawful intercourse  was  indeed  necessary  to  support  such  indictment. 
But  the  plaintiff  in  error  could  not  have  been  convicted  upon  the  first 
indictment  by  proof  of  such  intercourse  and  of  his  marriage,  without 
proof  of  continuous  unlawful  cohabitation;  nor  upon  the  second  in- 
dictment by  proof  of  such  cohabitation,  without  proof  of  his  marriage. 
Full  proof  of  the  offense  charged  in  either  indictment  would  not,  there- 
fore, of  itself  have  warranted  any  conviction  upon  the  other.  The 
necessary  consequence  is  that,  assum^tT^s^-^^at-pi^f  of  the  samc~act  or 
acts  of  unlawful  intercourse  was  introduced  on  the  trial  of  both  in- 
dictments, the  conviction  upon  the  firstindictment  \yas  no  bar  to  a 
conviction  and  sentence  upon  the  seconHTand  that  there  is  no  error  in 
the  judgment  foi"  which  it  canTe  reversed. 

The  question  of  fHejustice  of  punishing  the  offender  for  two  dis- 
tinct offenses  growing  out  of  the  same  act  was  a  matter  for  the  con- 
sideration of  the  grand  jury  and  the  attorney  for  the  commonwealth 
in  the  presentment  and  prosecution,  of  the  court  below  in  imposing 
sentence,  or  of  the  executive  in  the  exercise  of  the  pardoning  power. 
It  is  not  within  the  jurisdiction  of  this  court  as  a  court  of  error. 

Judgment  affirmed. 


FAULK  V.  STATE. 
(Supreme  Court  of  Alabama,  1875.     52  Ala.  41.'.) 

Brickell,  C.  J.-®  A  plea  of  former  acquittal  and  of  not  guilty 
should  not  be  interposed  at  the  same  time.  The  plea  of  former  ac- 
quittal should  contain  a  protp^tatmn  ^f  in^nre"^'^,  and  shoulcl  precede 
a  plea  of  not  guilty.  This  last  plea  is  not  necessary,  if  thFTirst  pre- 
vails. 1  Bisn.  Ur.  Pr.  §§  577,  578.  If  the  two  pleas  are  tendered 
together,  they  should  not  be  submitted  to  the  jury  at  once,  but  the 
court  should  order  the  special  plea  passed  upon  first.     Id.    If  the  plea 

29  Part  of  this  case  is  omitted. 


200  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  (Oh.  11 

is  determined  against  the  defendant,  he  is  allowed  to  plead  over,  and 
to  have  his  trial  for  the  offense  itself.  1  Whart.  Am.  Cr.  Law,  §  578. 
On  an  indictment  for  a  misdemeanor,  if  the  defendant  interposes  the 
plea  of  autrefois  acquit  or  autrefois  convict,  and  the  plea  of  not  guilty, 
at  the  same  time,  and  without  objection  proceeds  to  trial  on  both,  he 
waives  the  irregularity,  and  if  the  jury  pronounce  on  both  pleas,  he 
cannot  take  advantage  of  it.  Dominick  v.  State,  40  Ala.  680,  91  Am. 
Dec.  496.^**  In  a  case  of  felony  the  rule  is  different.  The  failure  to 
make  objection  to  the  trial  of  both  issues  at  the  same  time  is  not  a 
waiver  of  the  irregularity,  and  advantage  of  it  may  be  taken  in  arrest 
of  judgment,  or  on  error.     Foster  v.  State,  39  Ala.  229. 

The  appellants  were  charged  with  felony,  and  by  consent  of  the  state 
pleaded  at  the  same  time,  by  the  mere  titles  of  the  pleas,  "former  ac- 
quittal," and  "not  guilty."  They  inquired  whether  the  court  would 
not  try  the  issue  of  former  acquittal  first.  The  court  dechned  to  ex- 
press an  opinion,  but  said  the  defendants  could  do  as  they  wished 
about  trying  both  issues  together.  It  was  for  them  to  determine.  It 
might  not  be  best  for  them,  but  the  court,  if  they  wished,  would  first 
try  the  plea  of  former  acquittal.  The  defendants  then  agreed  that 
both  issues  should  be  submitted  to  the  jury,  and  the  trial  proceeded. 
After  the  evidence  on  both  issues  had  been  closed,  the  defendants  ob- 
jected to  the  trial  of  them  at  the  same  time.  The  court  inquired  if 
the  defendants  objected  to  the  jury,  which  had  been  impaneled  and  had 
heard  the  evidence,  trying  first  the  plea  of  former  acquittal  and  then 
the  plea  of  not  guilty.  The  defendants  objected,  and  the  court  di- 
rected the  trial  on  both  pleas  to  proceed,  to  which  defendants  excepted. 

The  court  should  of  its  own  motion  have  directed  a  trial  first  of  the 
plea  of  former  acquittal,  without  an  application  from  the  defendants, 
or  inquiring  from  them  as  to  whether  that  course  should  be  pursued. 
Nor  do  we  see  the  propriety  of  the  intimation  that  it  would  or  might 
be  best  for  the  defendants  that  both  issues  should  be  tried  at  once. 
The  action  of  the  defendants  should  not  have  been  influenced  by  such 
an  intimation,  and  it  is  difficult  to  conceive  the  injury  which  would  re- 
sult to  them  from  a  separate  trial  of  the  issues.  Though  the  defend- 
ants consented  to  the  trial  of  both  issues,  the  consent  was  given  un- 
der the  pressure  of  the  intimation  that  this  course  was  best  for  them, 
and  it  should  not  be  regarded  as  a  waiver  by  them  of  the  irregularity. 
This  error  would  operate  a  reversal  of  the  judgment;  but  the  evidence 
offered  in  support  of  the  plea  is  wholly  matter  of  record,  consisting  of 
a  judgment  of  conviction  (but  for  what  offense  does  not  appear)  at 
the  Spring  term,  1874,  of  the  circuit  court  of  Pike  county,  and  a 

30  "The  defendant  pleaded  not  guilty  and  former  acquittal.  The  jury  re- 
turned a  verdict  of  guilty,  but  did  not  find  upon  the  plea  of  former  acquittal. 
There  must  be  a  verdict  upon  that,  as  upon  the  plea  of  not  guilty,  before  there 
can  be  a  judgment  of  conviction."  Per  Curiam,  in  People  v.  Helbing,  59  Cal. 
567  (1881). 

Accord:  Moody  v.  State,  60  Ala.  78  (1877). 


Ch.  11)  ARRAIGNMENT,    PLEAS,    AND    MOTIONS.  201 

judgment  sustaining  a  demurrer  to  an  indictment  against  the  defend- 
ants at  the  Fall  term  of  said  court.  Nchher  indictment  was  offered 
in  evidence,  nor  any  evidence  offered  that  tliev  were  tor  the  same  of- 
fense charged  in  the  present  indiottinLuL — 3p€^-iupp£irt  a^plea  of  former 
acquittal  or  former  conviction,  it  is  not  sufhcient  simply  to  put  in  the 
record,  even  when  it  embraces  the  indictment  on  which  judgment  is 
pronounced.  Evidence  must  be_j^k£iL_Lhat_the  offenses  charged  in  the 
present  and  former  indictment  are  the  same.  1  Bish.  Cr.  Pr.  §  581. 
The  record  of  the  judgment  of  conviction  did  not  tend  to  support  the 
plea  of  former  acquittal;  and  the  record  of  the  judgment  on  the  de- 
murrer to  the  indictment,  and  quashing  it,  was  not  in  any  sense  a 
judgment  of  acquittal,  barring  another  prosecution.  Rev.  Code,  § 
4146.  There  was  no  pretense  for  the  plea,  and  the  error  of  submit- 
ting it  to  a  trial  with  the  plea  of  not  guilty  was  not  injurious  to  the 
appellants.  If  the  plea  of  former  acquittal  had  been  drawn  in  full, 
instead  of  being  pleaded  by  its  title,  and  had  stated  the  judgment  on 
the  demurrer  as  the  judgment  of  acquittal  relied  on.  it  would  have 
been  a  mere  nullity,  which  could  have  been  stricken  out  on  mo- 
tion.   *    *    * 

There  is  no  error  in  the  record  prejudicial  to  the  appellants,  and 
the  judgment  must  be  affirmed. ^^ 

31  Compare  Re?,  v.  Charlesworth.  9  Cox.  C.  C.  40  (1861);  Commonwealth 
V  Merrill  8  Allen  (Mass.)  Mo  (1864) ;  State  v.  Johnson.  11  Nev.  273  (1876) ; 
People  V.  Helbing.  59  Cal.  567  (1S81).  v,  .  *.    ^ 

"Counsel  for  appellant  argue  the  question  of  'once  in  jeopardy  ;  hut  that 
question  can  arise  onlv  after  an  issue  has  been  made  hy  a  i4ea  of  'once  in 
jeopardy.' "  McFarland,  J.,  in  People  v.  Lee  Yune  Chong,  94  Cal.  3S7.  29  Pac. 
778  (189'^) 

Accord:'  Pitner  v.  State,  44  Tex.  578  (1876).  Compare  Bryant  v.  State,  72 
Ind.  400  (1880). 


202  TRIAL.  X^^-  1^ 

CHAPTER  XII 
TRIAL 


SECTION  4.— RIGHT  TO  TRIAL  BY  JURY 


V  I  r,  j^^  Before  the  abolition  of  the  ordeal  in  1215  the  justices,  having  re- 
\Krz^\Ar*'^^^*^  ceived  the  statement  of  the  hundred  jurors,  turn  to  the  representatives 
(      J2a^"^-»-i-  °^  ^^^  ^'-'^^^  neighboring  vills,  who  at  this  point  are  sworn  to  make  true 

\r^         '  answer.     If  these  villani  agree  with  the  hundredors  in  declaring  that 

the  person  in  question  is  suspected  of  a  felony,  then  he  goes  to  the 
water.  *  *  *  /^g  ^yg  j-ead  the  Rolls  and  Bracton's  text,  what  nor- 
mally happens  is  this:  The  hundred  jury,  without  being  again  sworn 
— it  has  already  taken  a  general  oath  to  answer  questions  truly — is 
asked  to  say  in  so  many  words  whether  this  man  is  guilty  or  no;  if 
it  finds  him  guilty  then  "the  four  townships"  are  sworn  and  answer 
the  same  question.  If  they  agree  with  the  hundredors,  sentence  is 
passed. 

Pollock  &  Mait.  Hist.  Eng.  Law%  II,  644. 

So  far  as  we  can  see,  if  the  justices  in  eyre  receive  a  presentment 
of  any  of  the  minor  offenses,  they  give  the  incriminated  person  no 
chance  of  denying  his  guilt,  but  at  once  declare  him  to  be  "in  mercy." 
If,  for  example,  the  jurors  present  that  J.  S.  has  broken  the  assize 
of  wine,  then  J.  S.  is  put  in  mercy;  and  so,  if  he  is  said  to  have  "fled 
for"  a  crime  of  which  he  was  not  guilty,  a  forfeiture  of  his  chattels 
is  decreed. 

We  believe  that  in  Henry  III.'s  day  anything  that  we  could  call 
the  trial  of  a  man  upon  an  indictment  for  misdemeanor  was  exceed- 
ingly rare.  Slowly,  when  the  procedure  in  cases  of  felony  was  well 
established,  the  doctrine  gained  ground  that  the  person  charged  with 
an  offense  punishable  by  imprisonment  might  traverse  the  presentment 
of  the  jurors  and  "put  himself"  upon  the  country;  but,  so  long  as 
many  of  the  minor  misdeeds  were  punished  by  amercement  in  the  old 
local  courts,  there  were  many  presentments  that  were  not  traversable. 

Id.  649,  650. 


It  seems  to  have  been  possible,  even  before  the  decree  of  the  Fourth 
Lateran  Council,  in  this  same  year  of  1215,  to  apply  the  jury  to  crim- 
inal cases  whenever  the  accused  asked  for  it.  But  how  if  he  did  not 
ask  for  it?  *  *  *  There  was  an  unsettled  time  at  first,  and  some 
persons  were  tried  by  jury  and  hanged  who  never  had  consented  to 


Cb.  12)  TRIAL.  203 

the  jury.  There  was  ground  for  this  course  in  the  usages  of  the  king's 
court  in  both  civil  and  criminal  cases.  *  *  *  As  we  saw  in  Glan- 
ville,  one  might  be  compelled  to  the  ordeal  against  his  will.  In  the 
nature  of  things  it  could  not  really  be  left  to  the  option  of  an  accused 
person  whether  he  would  be  tried  or  not.  It  is  not  strange  then  to 
find  that  the  judges,  using  the  large  discretion  confided  to  them  by  the 
crown  after  the  Lateran  Council,  sometimes  forced  a  jury  upon  an  un- 
willing prisoner.     *     *     * 

Down,  then,  to  the  middle  of  the  thirteenth  century,  or  later,  it  seems 
to  have  been  thought  possible  by  high  authority,  as  well  in  criminal 
cases  as  in  civil,  to  try  a  man  by  jury,  or,  at  any  rate,  to  convict  him, 
whether  he  consented  or  not.  But  the  doctrine  was  contrary  to  set- 
tled ideas,  it  was  not  an  established  one,  the  precedents  were  few,  and 
it  was  supported  rather  on  analogy  than  any  body  of  direct  authority. 
An  obvious  course,  in  case  of  refusal,  was  that  of  treating  the  party  as 
confessing.  There  had,  indeed,  always  been  cases  where  one  was 
hanged  without  any  trial  at  all,  as  where  a  man  was  taken  in  the  fact. 

Thayer,  Evidence  at  the  Com.  Law,  68. 


COLLINS  v.  STATE. 

(Supreme  Court  of  Alabama,  1889.    88  Ala.  212,  7  South.  260.) 

The  indictment  in  this  case  was  found  in  the  circuit  court  of  Bar- 
bour, at  the  June  term,  1889,  and  charged  that  the  defendant  "did 
make  use  of  abusive,  iusiiidii2;,__orobscene  languageT^rr-the  presence 
or  within  the  hearing  of  Mary  Dayis^  female."  At  the  end  of  the 
term,  the  case  was  transferred,  with  others,  by  order  of  the  court,  to 
the  county  court,  under  the  provisions  of  the  act  approved  February 
30,  1889.    Sess.  Acts  1888-89,  pp.  501-508.    *    *    * 

SoMERViLLE,  J.^  The  controlling  point  of  contention  in  the  present 
case  is  the  alleged  unconstitutionality  of  the  act  approved  February  20, 
1889,  entitled  "An  act  to  regulate  the  trials  of  misdemeanors  in  Bar- 
bour county."  Acts  1888-89,  pp.  501-508.  This  statute  confers  on 
the  county  court  of  Barbour  county-44udsdiction  ofaTT^sdemeanors 
committed  in  that  county,  and  provides  fQrJJaZ]transTcriD--that  tribunal 
of  all  indictments  pending  nn4  imtriff]  in  the  circuit  court  on  the  day 
of  adjournment  of  any  term,  and  regulates-4n.  detail  the  procedure  au- 
thorized to  be  adopted  on  such  trials.  The  vital  objection  urged  to 
the  act  is  that  it  expressly  provides  for  the  trial  of  such  cases  by  a 
jury  of  only  eight  persons,  instead  of  twelve,  ancPailttrorizes  an  ap- 
peal upon  conviction  directly  to  the  Supreme  Court  only,  thus  depriv- 
ing the  defendant  of  his  constitutional  right  of  trial  by  jury. 

The  Constitution  of  Alabama  declares  that  "the  right  of  trial  by 

1  Part  of  this  case  is  omitted 


204  TRIAL.  (Ch.  12 

jury  shall  remain  inviolate."  and  in  all  prosecutions  by  indictment  that 
thc^ccusecPsKaTThave  "a  speedy  publir  trial,  by_^i  impartial  jury" 
of  the  county  or  district  in  which  the  offense  wascommitted.  Const. 
1875,  art.  1,  §§  7,  12.  It  does  not  admit  of  controversy  that  the  jury 
contemplated  by  these  clauses  of  the  Constitution  is  a  common-law 
jury  of  twelve  men,  and  that  a  jury  constituted  of  a  less  number  than 
this  is  not  a  constitutional  jury.  Iron  Co.  v.  Cabaniss,  87  Ala.  328, 
G  South.  300;  Cooley,  Const.  Lim.  (5th  Ed.)  391;  Sedg.  St.  &  Const. 
Law  (2d  Ed.  Pom.)  493,  and  note;  Steamboat  Co.  v.  Roberts,  48  Am. 
Dec.  178,  193,  note;  Wynehamer  v.  People,  13  N.  Y.  378;  Work  v. 
State,  2  Ohio  St.  29G,  59  Am.  Dec.  671;  Vaughn  v.  Scade,  30  Mo. 
600;   State  v.  Kaufman,  1  Crim.  Law  Mag.  57,  note  61. 

There  are  cases,  it  is  true,  where  the  general  assembly  is  constitu- 
tionally authorized  to  dispense  with  a  grand  jury,  and  to  authorize  by 
law  the  prosecution  of  certain  misdemeanors  before  justices  of  the 
peace  and  other  inferior  courts.  Const.  1875,  art.  1,  §  9.  And  in  such 
case,  the  statute  authorizing  the  waiver  of  jury  trial  by  the  defend- 
ant, after  transfer  of  an  indictment  for  misdemeanor  to  an  inferior 
court,  has  been  held  to  be  free  from  constitutional  objection.  Con- 
nelly V.  State,  60  Ala.  89.  So,  where  a  right  of  appeal  is  secured  to  a 
higher  court,  with  a  right  of  trial  there  by  a  common-law  jury,  the 
right  may  even  thus  be  practically  preserved.  Sedg.  St.  &  Const.  Law 
(Pom.  2d  Ed.)  491.  This  case  falls  within  none  of  these  exceptions  or 
modifications  of  the  general  rule  under  discussion. 

A  close  inspection  of  the  statute  under  consideration  leaves  no  doubt 
as  to  what  was  the  legislative  intent  as  to  the  composition  of  the  only 
kind  of  jury  authorized  to  be  organized  under  its  provisions.  It  is 
a  jury  of  eight  persons,  and  none  other.  It  is  declared  that,  "if  a  jury 
is  demanded,  the  court  shall  make  an  entry  thereof  on  the  record,  and 
proceed  as  herein  provided ;"  meaning  thereby  in  the  mode  prescribed 
by  the  act.  Acts  1888-89,  p.  502,  §  6.  It  is  "thereupon  provided  that 
the  petit  juries  "shall  consist  of  two  panels,  of  eight  men  each,  and 
shall  be  selected  as  herein  provided,"  but  may  be  impaneled  under  the 
general  law.  So  the  authority  to  order  special  venires,  and  select  tales 
jurors,  under  the  general  jury  law  as  it  stands  in  the  Code,  is  coupled 
with  the  limitation,  "except  as  modified  by  this  act."  Page  507,  §  24. 
And  again,  the  general  jury  law  is  declared  applicable,  "except  as 
modified  or  repealed  by  this  act." 

A  guarded  caution  is  thus  manifest  that  the  authority  of  the  county 
court  to  organize  juries  shall  be  limited  to  juries  composed  of  eight 
persons.  The  intention  to  exclude  the  power  to  increase  the  number 
to  twelve  is  as  clear  as  language  can  make  it,  short  of  express  pro- 
hibition. By  necessary  implication,  we  are  driven  to  the  conclusion 
that  the  jurisdiction  attempted  to  be  vested  in  this  court  embraced 
the  power  to  organize  but  one  sort  of  jury,  and  that  is  a  jury  of  eight 
men.  This  feature  of  the  law,  under  the  authorities  cited  above,  is 
palpably  unconstitutional. 


€h.  12)  TRIAL.  205 

Striking  out  the^e^'nn  ai44J^eTT7Tni5^4J4«..^^g:anization  of  these  im- 
perfect juries  as  void,  and  we  have  an  act  authorizing  the  trial  of  a 
defendant  on  an  indictment,  without  providing  for  a  trial  by  jury  in 
any  mode,  either  directly  by  the  courl  on  which  jurisdiction  is  l;on- 
ferred,  or  by  appeal  to  another  tribunal  in  which  the  right  is  secured. 
This  was  not  the  legislative  intention,  and,  if  it  were,  the  act  is  re- 
pugnant to  the  clauses  in  the  declaration  of  rights  above  cited,  which 
provide  for  a  jury  trial  by  twelve  men  in  all  prosecutions  by  indict- 
ment, and  the  purpose  of  which  was  to  preserve  the  right  inviolate. 
In  this  view  of  the  case,  under  the  authorities,  the  whole  act  must  fall. 
Railroad  Co.  v.  Morris,  65  Ala.  198;  Powell  v.  State,  69  Ala.  13; 
Stewart  v.  Commissioners,  82  Ala.  209,  2  South.  270 ;  Allen  v.  Loui- 
siana, 103  U.  S.  80,  26  L.  Ed.  318;  Ex  parte  Roundtree,  51  Ala.  42; 
Elsberry  v.  Seay,  83  Ala.  614,  3  South.  804. 

The  judgment  must  be  reversed.     *     *     * 


BYERS  V.  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1862.     42  Pa.  89.) 

Strong,  J.-  The  plaintiffs  in  error  having  been  convicted,  and  com- 
mitted under  an  act  of  assembly  passed  March  13,  1862,  sued  out  a 
habeas  corpus  and  this  certiorari,  and  their  first  assignment  of  error 
brings  in  question  the  constitutionality  of  the  act  under  which  the 
conviction  took  place.  The  act  is  contained  in  two  sections.  By  the 
first  it  is  enacted  that  "if  any  personshall  be  charged  on  oath  or  af- 
firmation, before  the  mayor  or  police  magistrate  of  the  central  station 
of  the  city  of  Philadelphia,  with  being_aprofessional  thief  or  pick- 
pocket, and  who  shall  have^Ji££ii_arrested~lDy^  the  police  authorities  at 
any  steamboat  landing,  railroad  depof,  church,  banking  institution, 
broker's  office,  place  of  public  amusement,  auction-room,  store,  or 
crowded  thoroughfare  in  the  city  of  Philadelphia,  and  it  shall  be 
proven  to  the  satisfaction  of  the  said  mayor,  or  police  magistrate  ap- 
pointed by  the  mayor  for  the  central  station,  by  sufficient  testimony, 
that  he  or  she  was  frequenting  such  place  or  places  for  an  unlawful 
purpose,  he  or  she  shall  be  committed  Hy  jlip  caul  m^ynr  nr  caiH  police 
magistrate,  to  the  j^iLofUie  county  of  Philadelphia,  for  a  term  not 
exceeding  ninety  days,  there  "to  be  kept  at  hard  labor ;  or,  in  the  dis- 
cretion  ot  the  said  mayor  or  police  magistrate  of  said  central  station, 
he  or  she  shall  be  required  to  enter  security  for  his  or  her  good  be- 
havior for  a  term  not  exceeding  one  year."  The  second  section, gives 
to  any  person  who  may  feel  aggrieved  at  any  such  act,  judgment,  or 
determination  of  the  mayor  or  police  magistrate,  the  right  to  apply 
to  any  judge  of  the  court  of  quarter  sessions  for  a  writ  of  habeas  cor- 

2  Part  of  this  case  is  omitted. 


206  TRIAL.  (CL.  12 

pus,  and  directs  that  on  the  return  thereof  there  shall  be  a  rehearing  of 
the  evidence,  and  empowers  the  judge  either  to  discharge,  modify,  or 
confirm  the  commitment. 

It  is  insisted  that  this  act  is  repugnant  tq_that  clause  in  the  declara- 
tion of  rights  in  the  Constitution  whjcb_guarantees  "that  trial  by  jury 
shall  be  as  heretofore,  and  the  right  thereof  remain  inviolate."  The 
objection  is  based  upon  a  misconception  of  what  that  right— of  trial  by 
jury  was  which  is  pijjjjj.  h  il  1iy  lln  Ci  iiiililiilii  ui  The  founders  of 
this  state  brought  with  them  to  their  new  abode  the  usages  to  which 
they  had  been  accustomed  in  the  land  from  which  they  emigrated. 
Among  them  was  trial  by  jury.  That  mode  of  trial  had  long  been  con- 
sidered the  right  of  every  Englishman,  and  it  had  come  to  be  regarded 
as  a  right  too  sacred  to  be  surrendered  or  taken  away.  Even  in  Eng- 
land it  was  fundamental  or  constitutional,  so  far  as  any  right  can  be 
where  there  is  no  written  frame  of  government.  Its  extent  and  its 
privileges,  how  and  when  it  was  to  be  enjoyed,  were  perfectly  under- 
stood, and  in  bringing  it  with  them  the  founders  of  the  commonwealth 
doubtless  intended  to  bring  it  as  they  had  enjoyed  it.  None  of  the 
frames  of  government  or  Constitutions  under  which  w^e  have  lived 
have  contemplated  any  extension  of  the  right  beyond  the  limits  within 
which  it  had  been  enjoyed  previous  to  the  settlement  of  the  state  or 
the  adoption  of  the  Constitution.  No  intention  to  enlarge  it  appears 
in  the  laws  agreed  upon  in  England  in  1682.  Our  first  Constitution, 
that  of  1776,  declared  that  "trials  by  jury  shall  be  as  heretofore."  The 
Constitution  of  1790,  and  the  amended  one  of  1838,  adopted  substan- 
tially the  same  provision.  Their  language  was :  "Trial  by  jury  shall 
be  as  heretofore,  and  the  right  thereof  remain  inviolate."  All  looked 
to  preservation,  not  extension.  It  is  the  old  right,  whatever  it  was, 
the  one  previously  enjoyed,  that  must  remain  inviolable,  alike  in  its 
mode  of  enjoyment  and  in  its  extent. 

What,    then,    Waa^his    right    thus     rliPi-iohpr]     ^nr\    j-Vihq    pf^rpptnatprl  ? 

We  inquire  not  now  after  the  mode  m  "which  such  a  trial  was  con- 
ducted. Our  business  at  present  is  to  ascertain  how  far  the  right  to 
a  trial  by  jury  extended — to  what  controversies  it  was  applicable.  It 
was  a  right  the  title  to  which  is  founded  upon  usage,  and  its  measure 
is  therefore  to  be  sought  in  the  usages  which  prevailed  at  the  time 
when  it  was  asserted.  But  never  in  England  was  there  any  usage,  and 
consequently  never  was  there  any  right  in  the  subject,  that  every  liti- 
gated question  of  fact  should  be  submitted  to  a  jury.  In  all  that  large 
class  of  cases  which  are  cognizable  in  courts  of  equitv.  there  never 
was  any  right  nf  tri^l  j^y  jury ;  nor  did  the  rightextend"T?rTnany  other 
civil  and  criminal  proceedmgs.  Summarv  convictions  for  petty  of- 
fenses agamst  statutes  were  always  sustained,  and  they  were  never 
supposed  to  be  in  rnnflirt  -^vrth  ^'""^  rommnn-law  righf~tn  a  Trial  by 
jury. 

The  ancient  as  well  as  the  modern  British  statutes  at  large  are  full 
of  acts  of  Parliament  authorizing  such  convictions.    Without  referring 


Cb.  12)  TRIAL.  207 

to  those  which  have  been  passed  against  nonattendance  upon  public 
worship  of  the  Estabhshed  Church,  against  refusal  to  take  oaths  of 
allegiance,  against  profaneness  and  enibezzlenTeirt,  all  nf^^^'hich  pro- 
vided for  conviction  and  punishment  of  oltenders  witliout  the  interven- 
tion of  a  jury,  it  may  sufficu  Lu  nuilcti  the  vSg^ranl  aClb,  and- the  pro- 
ceedings under  tliem.  References  to  the  oldest  of  them  will  be  found 
in  the  fourth  volume  of  Burn's  Justice,  19th  edition,  under  the  title 
"Vagrants."  The  more  modern,  the  statute  of  5  Geo.  IV,  c.  83,  is 
contained  in  the  British  Statutes  at  Large,  and  also  in  2  Chitty's  Stat- 
utes, 145,  under  the  head  of  "Criminal  Law,  Vagrancy."  By  the  stat- 
ute of  7  James  I,  c.  4,  it  was  enacted  that  idle  and  disorderly  persons 
shall  be  sent  to  the  house  of  correction ;  and  provision  was  made  for 
a  summary  conviction.  That  act  has  repeatedly  been  substantially  re- 
enacted  and  enlarged.  What  constitutes  idleness  and  disorder,  what 
amounts  to  vagrancy,  has  been  defined  in  England,  as  it  has  been  in 
this,  and  most,  if  not  all,  of  our  sister  states;  and  uniformly  under 
these  acts  summary  convictions  have  been  authorized.  Perhaps  all  va- 
grants are  within  the  class  denominated  idle  and  disorderly  persons 
by  the  statute  of  7  James  I,  c.  4. 

There  are  also  in  England  very  old  acts  of  Parliament  providing  for 
the  arrest,  summary  conviction,  and  punishment  of  rogues  and  vaga- 
bonds. These  are,  however,  only  vagrant  acts,  the  vagrancy  being  of 
a  more  aggravated  character.  Who  should  be  deemed  rogues  and 
vagabonds  was  declared  by  the  statutes  of  17  Geo.  II,  c.  5,  23  Geo.  Ill, 
c.  88,  and  5  Geo.  IV,  c.  83.  Among  the  classes  defined  by  the  first 
of  these  acts  were  persons  who  gathered  alms  under  the  pretense  of 
losses,  fortune  tellers,  gamblers,  and  all  who  wander  abroad  beggiiig; 
and  under  the~twoiater  atts,  any  persons  apprehended  havTiigupon 
them  any  pick-lock,  key7~crow,  etc.,  or  otheFTrnplement,  within  in- 
tent feloniously  to  brea^"and  enter  any  dwelling  house,  etc.,  or  having 
any  offensive  weapon  with  intent  feloniously  to  assault  any  person,  or 
who  should  be  found  in  any  dwelling  house,  warehouse,  coach  house, 
stable,  or  outhouse,  or  any  inclosed  yard  or  garden,  etc.,  with  intent 
to  steal,  or  any  suspected  person  or  reputed  thief  frequenting  any 
river,  canal,  or  navigable  stream,  dock  or  basin,  or  any  quay,  wharf, 
or  warehouse,  near  or  adjoining  thereto,  or  any  street,  avenue,  or 
highway  leading  thereto,  or  any  place  of  public  resort,  with  intent  to 
commit  a  felony. 

This  brief  reference  to  English  legislation  is  quite  enough  to  show 
that  the  right  of  trial  by  jury  was  never  without  limits.  Where,  there- 
fore, the  right  was  spoken  of  in  our  Constitution,  it  was  not  meant  an 
exemption  from  any  summary  conviction.  Long  before  the  settlement 
of  this  state,  and  down  to  the  time  when  our  first  Constitution  was 
adopted,  vagrants,  including  rogues  and  vagabonds,  were  liable  to  such 
convictions,  and  to  punishment  under  them.  The  right  of  trial  by 
jury  was  never  extensive  enough  to  interfere  with  them.  So  it  was 
understood  by  the  framers  of  even  our  first  Constitution.     Before  its 


208      '  TRIAL.  (Ch.  12 

adoption,  we  had  a  vagrant  act  which  authorized  summary  convictions. 
One  was  passed  in  1767 ;  and  in  1776,  February  8,  one  was  enacted 
respecting  the  city  of  Philadelphia,  which  authorized  any  justice  of  tlie 
peace  of  said  city  or  county,  on  due  examination  and  proof,  to  com- 
mit all  rogues,  vagabonds,  and  other  idle,  dissolute,  and  disorderly  per- 
sons to  the  house  of  employment,  there  to  be  kept  at  hard  labor  for 
any  term  not  exceeding  three  months.  These  acts  were  in  force  in 
1776.  In  view  of  them,  the  first  Constitution  was  made,  and  it  de- 
clared, not  that  trials  by  jury  should  be  in  all  cases,  but  as  theretofore. 
And  when  that  gave  place  to  the  later  Constitutions,  they  undertook 
to  preserve  only  that  right  which  had  been  enjoyed. 

We  cannot,  then,  hold  that  the  act  of  March  13,  1862,  is  in  conflict 
with  the  constitutional  right  of  trial  by  jury.  Nor  is  it  prohibited  by 
that  clause  in  the  Declaration  of  Rights  which  declares  that  an  ac- 
cused person  shall  not  be  deprived  of  his  life,  liberty,  or  property,  un- 
less by  the  judgment  of  his  peers,  or  the  law  of  the  land.  The  law  of 
the  land  undoubtedly  means  due  process  of  law;  biit_a^ summary  con- 
viction of  yngrnnryT'TTr  nn  nff^nsn  'Videm  g^^n-^ri^/'  is  n  rniiyi''ti''^n  by 
dn^^Oiirs^  ''^f  hw  We  do  not  mean  to  be  understood  as  asserting 
that  there  may  not  be  legislation  conferring  upon  magistrates  a  power 
to  convict  summarily,  which  would  be  in  violation  of  the  Constitution. 
Undoubtedly  there  may.  We  speak  only  of  the  case  before  us.  Va- 
grants, including  rogues  and  vagabonds,  and  those  who  frequent  pub- 
lic places  for  unlawful  purposes,  are  liable  to  summary  conviction  and 
punishment,  notwithstanding  anything  contained  in  the  Constitution, 
for  they  were  so  liable  before  the  Constitution  was  adopted.     *     *     * 

The  conviction  is  affirmed,  and  the  petitioners  are  remanded.' 


LORD  DACRES'  CASE. 
(Court  of  King's  Bench,   1534.     Kelyng,   56.) 

The  Lord  Dacres'  Case,  who  was  inrlir<-pr1_[0r  Treason  before  Com- 
missioners of  Oyer  and  Terminer  in  the  County  of  Cumberland,  for 
adhering  to  the  Scots,  the  King's  Enemies,  and  tried  by  his  Peers  26 
Hen.  VIIL  Thomas,  Duke  of  Norfolk,  being  High  Steward ;  and 
the  day  before  all  the  judges  assembled  to  resolve  certain  Questions 
which  might  arise  upon  the  said  Tryal,  so  that  if  any  Question  should 
be  asked  them  they  might  resolve  una  voce,  and  one  Question  was, 
whether  the  Prknnpr-mkrht  yraivf^  liig  Trval  by  hi'^  Pppr<;  anH  be  tryed 
by  the  Country,  and  thev  all  agreed  he  could  not.  For  the  Statute  of 
Magna  Charta  is  in  the  Negative,  "Nee  super  eum  ibimus  nisi  per 
legale  judicium  parium  suorum,"  this  is  at  the  King's  Suit  upon  an 
Indictment. 

3  Accord:  State  v.  Conlin,  27  Vt.  318  (1855) ;  Ex  parte  Ah  Peen,  51  Cal. 
280  (1876) ;  State  v.  Beneke,  9  Iowa,  203  (1859) ;  Dougherty,  In  re,  27  Vt. 
325  (1855). 


Cb.  12)  TRIAL.  209 

STATE  V.  WOODLING. 

(Supreme  Court  af  Minnesota,  1893.    53  Minn.  142,  54  N.  W.  IOCS.) 

M.  E.  Woodling  was  arraig-nf^^  hefnrp-fhp  municipal  court  of  Min- 
neapolis on  a  complaint  for  assaultJ3nrl  battervr  Defendant  waived  a 
jury,  and  .wan  fuuud  guilty  by  the  court,  and  ordered  to  pay^^'-fiae. 
Defendant  appeals. 

MiTciiKLL,  J.*  The  defendant,  having  been  arraigned  before  the 
municipal  court  of  Minneapolis  upon  a  complaint  for  assault  and  bat- 
tery, pleaded  not  guilty,  and  expressly  waived  a  jury,  and  thereupon 
the  court,  having  tried  the  case,  found  the  defendant  guilty,  and  or- 
dered that  he  pay  a  fine  of  $25.  The  defendant  on  appeal  raises  two 
points:  First,  that  the  judgment  was  not  justified  by  the  evidence; 
and,  second,  that  the  court  had  no  jurisdiction  to  render  judgment 
without  the  verdict  of  a  jury.     *     *     * 

2.  As  to  what  constitutional  rights  may  be  waived  by  defendants  in 
criminal  cases,  and  particularly  whether  they  can  waive  the  right  of 
trial  by  jury,  is  a  subject  upon  which  much  has  been  written,  and  upon 
which  there  is  much  difference  of  opinion.  Without  going  into  any 
general  discussion  of  the  subject,  we  may  say  that  it  seems  to  us  that 
perhaps  the  true  criterion  is  whether  the  right  is  a  privilege  intended 
merely  for  the  benefit  of  the  defendant,  or  whether  it  is  one  which 
also  affects  the  public,  or  goes  to  the  jurisdiction  of  the  court.  If  it 
belongs  to  the  first  class,  we  see  no  good  reason  why  the  accused  may 
not  waive  it ;  but,  if  it  belongs  to  the  latter,  it  would  seem  that  no 
consent  on  his  part  could  amount  to  a  valid  waiver ;  and  the  different 
views  entertained  as  to  the  nature  and  object  of  constitutional  provi- 
sions relating  to  the  right  of  trial  by  jury  in  criminal  cases  will  proba- 
bly account  for  the  conflict  of  decisions  as  to  whether  it  can  be  waived. 

Those  who  construe  the  right  as  a  matter  in  which  the  public  has 
no  interest,  and  which  is  not  jurisdictional,  but  designed  solely  for  the 
protection  of  the  defendant,  naturally  hold  that  it  may  be  waived  [^ 
while  those  who  take  the  view  that  it  affects  the  public  as  well  as  the 
defendant,  or  that  it  relates  to  the  constitution  of  the  court,  of  which 
it  is  intended  to  make  the  jury  an  essential  part,  as  naturally  hold  that 
it  cannot  be  waived.  If  our  Constitution  provided,  as  did  the  original 
Constitution  of  the  United  States  (article  3,  §  2),  that  "the  trial  of  all 
crimes  (except  in  cases  of  impeachment)  shall  be  by  jury,"  there  would 
be  good  grounds  for  arguing  that  a  jury  was  intended  to  be  an  es- 
sential part  of  a  constitutional  tribunal  for  the  trial  of  crimes,  with- 

4  Part  of  this  case  is  omitted. 

5  See  Caucemi  v.  People,  18  N.  Y.  128  (18.jS)  ;  Paulsen  v.  People.  195  111. 
507,  63  N.  E.  144  (1902) ;  Michaelson  v.  Beomer,  72  Neb.  701,  101  N.  W.  1007 
(1904) ;  State  v.  Lockwood,  43  Wis.  403  (1877) ;  State  v.  Maine,  27  Conn.  281 
(1858) ;  State  v.  Jackson,  106  La.  189,  30  South.  309  (1901) ;  State  v.  Holt, 
90  N.  C.  749,  47  Am.  Rep.  544  (1884). 

Mik.Cr.Pr.— 14 


210  TRIAL.  (Ch.  ii: 

out  which  it  would  not  be  legally  constituted,  any  more  than  it  would 
be  without  a  judge.  But  our  Constitution  contains  no  such  provision. 
Its  language  is  (article  1,  §  6):  "In  all  criminal  prosecutions  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an  impartial 
jury,"  etc. 

I    This  language  imports  merely  a  grant  or  guaranty  of  a  right  to  the 
/accused  for  his  own  protection,  and  seems  to  us  never  to  have  been 
[intended  to  prescribe  the  organization  of  the  court,  or  to  make  a  jury 
Vn  essential  part  of  it.    If  this  be  so,  it  necessarily  follows  that  the  pres- 
ence or  absence  of  a  jury  is  not  a  jurisdictional  matter — that  is,  it  does 
not  go  to  the  constitutional  organization  of  the  court — and  that,  if  the 
defendant  cannot  waive  a  jury  trial,  it  must  be  purely  upon  grounds 
of  public  policy,  and  because  the  public  have  such  an  interest  in  the 
life  and  liberty  of  the  citizen  that  he  ought  not  to  be  allowed  to  waive 
this  safeguard  which  the   Constitution  has  thrown  around  him.     If 
the  right  is  intended  merely  for  his  protection,  it  is  difficult  to  see  why 
on  principle  he  may  not  waive  it,  or  why  any  distinction  in  that  re- 
gard should  be  made  between  the  right  to  a  jury  trial  and  various 
other  rights  which  it  is  uniformly  held  that  he  can  waive. 

It  is  also  difficult  to  perceive  the  distinction  sometimes  made  in  this 
respect  between  misdemeanors  and  felonies,  unless  it  be  founded  on 
considerations  of  public  policy  growing  out  of  the  greater  severity  of 
punishment  in  case  of  the  latter.*'  The  logic  of  both  the  decision  and 
the  reasoning  in  State  v.  Sackett,  39  Minn.  69,  38  N.  W.  773,  would 
tend  strongly  to  the  conclusion  that  the  accused,  irrespective  of  any 
statute  authorizing  it,  might  waive  a  jury  in  any  criminal  case;  for  a 
"jury,"  within  the  meaning  of  the  Constitution,  imports  a  body  of  13 
men.  State  v.  Everett,  14  Minn.  439,  (Gil.  330.)  But  we  are  not  at 
present  prepared,  neither  is  it  necessary  in  this  case,  to  go  that  far. 

As  already  suggested,  if  the  accused  cannot  waive  a  jury,  his  ina- 
bility to  do  so  must  rest  wholly  upon  some  supposed  consideration  of 
public  policy.  The  Constitution  contains  no  provision  forbidding  him 
to  do  so,  or  prohibiting  the  Legislature  from  permitting  it  to  be  done. 
On  many  matters,  what  is  and  what  is  not  in  accordance  with  public 
policy  is  largely  within  the  discretion  of  the  Legislature.  In  fact,  pub- 
lic policy  is  largely  the  creation  of  the  Legislature.  In  the  absence  of 
any  constitutional  prohibition,  we  fail  to  see  why  a  declaration  of  leg- 
islative views  as  to  the  policy  of  permitting  the  accused  to  waive  a 
jury  trial  is  not  decisive  of  the  matter.  Now,  from  the  earliest  terri- 
torial days,  long  antedating  the  adoption  of  the  Constitution,  we  had, 
and  still  have,  a  statute  authorizing,  or  at  least  recognizing,  the  right 
of  defendants  accused  of  any  offense  cognizable  by  justices  of  the 
peace  to  waive  a  jury,  and  submit  to  trial  by  the  court.  St.  1851,  c. 
69,  art.  4,  §  172 ;    St.  1878,  c.  65,  §  146.     So  far  as  we  are  aware, 

6  This  distinction  is  taken  in  some  cases.  See  Brewster  v.  People,  1.S3  III. 
143,  55  N.  E.  640  (1899) ;  State  v.  Aldertou,  50  W.  Va.  101,  40  S.  E.  350  (1901). 


Ch.  12)  TRIAL.  211 

these  statutes  have  been  uniformly  acted  upon,  and  their  validity  never 
called  in  question. 

This  conclusively  shows  that,  in  the  view  of  the  Legislature,  it  is 
expedient  and  in  accordance  with  public  policy  to  permit  a  jury  to  be 
waived  in  the  case  of  all  those  petty  offenses  which  are  triable  by  jus- 
tices;  and  this  is  the  view  taken  in  most,  if  not  all,  other  jurisdictions. 
When  the  Legislature  created  the  municipal  court  of  Minneapolis,  it 
provided  that  "it  should  have  exclusive  jurisdiction  to  hear  all  com- 
plaints, and  conduct  all  examinations  and  trials,  in  criminal  cases  aris- 
ing or  triable  within  the  city  of  Minneapolis  heretofore  cognizable  be- 
fore a  justice  of  the  peace."  Sp.  Laws  1889,  c.  31,  §  2.  In  other 
words,  the  municipal  court  took  the  place  of  justices  of  the  peace,  its 
criminal  jurisdiction  being  the  same,  and  not  greater.  The  act  creat- 
ing the  court  docs  not  in  terms  provide  for  the  waiver  of  a  jury  trial 
by  the  defendant,  as  in  justice's  court,  but  it  seems  to  us  that  this  is 
necessarily  implied.  There  is  no  reason  why,  if  it  was  policy  to  per- 
mit defendants  to  do  so  in  justice's  court,  it  was  not  equally  so  to  per- 
mit it  in  the  same  class  of  cases  before  the  municipal  court. 

It  is  urged  that  the  fact  that  a  defendant  has  a  right  of  appeal  from 
a  justice  to  the  district  court  where  he  may  have  a  trial  de  novo  before 
a  jury,  while  no  such  right  of  appeal  is  given  from  the  municipal  court, 
(the  appeal  from  the  latter  being-  directly  to  the  supreme  court,)  ren- 
ders the  statute  relating  to  the  waiver  of  a  jury  in  justice's  court  in- 
applicable to  the  municipal  court.  If  the  statute  assumed  to  deny  the 
defendant  the  right  to  a  jury  in  justice's  court,  there  would  be  some 
force  in  this  suggestion.  But  it  does  nothing  of  the  kind ;  it  merely 
authorizes  him  to  waive  the  right  if  he  sees  fit  to  do  so.  We  cannot 
see  how  the  difference  in  the  right  of  appeal  (which  is  a  purely  statu- 
tory right)  has  any  bearing  on  the  question.  Our  conclusion  therefore 
is  that  a  defendant  may  waive  a  jury  in  the  municipal  court  the  same 
as  in  justice's  court.  See  In  re  Staff",  63  Wis.  2S5,  23  N.  W.  587,  53 
Am.  Rep.  285,  in  which  it  is  evident  that  the  court,  but  for  its  regard 
for  the  rule  of  stare  decisis,  would  have  gone  still  further,  and  held 
that  no  legislative  sanction  whatever  was  necessary  to  permit  the  de- 
fendant to  waive  a  jury  trial  in  such  cases.    Judgment  affirmed." 

Vanderburgh,  J.,  absent,  took  no  part. 

7  Accord:  Under  statutes.  In  re  StaCf,  0:3  Wis.  285,  2,1  N.  W.  .jS7,  53  Am. 
Rep.  285  (1885) ;  State  v.  Worden.  46  Conn.  .349.  33  Am.  Kep.  27  (ISTS;) ; 
Dillin,£?ham  v.  State.  5  Ohio  St.  280  (185.5):  Ward  v.  People,  30  :Mioli.  116 
(1874) ;   Ilallinger  v.  Davis,  146  U.  S.  314,  13  Sup.  Ct.  105,  36  L.  Ed.  986  (1892). 

Accord:  In  absence  of  statute.  State  v.  Kaufman,  51  Iowa,  578,  2  N.  W. 
275,  3^3  Am.  Rep.  148  (1879). 

Wliere  the  statute  authorizing  a  waiver  of  jury  trial  provides  that  the  of- 
fense may  be  tried  by  the  court  unless  a  jury  is  demanded,  the  mere  neglect 
of  defendant  to  demand  a  iury  has  been  held  to  be  a  waiver.  McClellan  v. 
State,  lis  Ala.  122.  23  South.  732  (1897):  Clinton  v.  Leake,  71  S.  C.  22,  50 
S.  E.  .541  (1905).  Where  the  statute  provides  that  the  case  may,  "by  agree- 
ment of  the  parties,  be  tried  by  a  jury  of  less  than  twelve  jurors,"  it  was  held 
that  mere  failure  to  object  to  trial  by  a  jury  of  less  than  twelve  was  not  a 


212  TBIAIi.  (Cll.  12 

SECTION  2.— QUALIFICATIONS  OF  JURORS 


"Quod  faciat  12  liberos  et  legales  homines  de  vicineto,"  &c.  Albeit 
the  words  of  the  writ  be  duodecim,  yet  by  ancient  course  the  sherife 
must  return  24 ;  and  this  is  for  expedition  of  justice :  for  if  12  should 
onely  be  returned,  no  man  should  have  a  full  jury  appear,  or  be  sworn 
in  respect  of  challenges,  without  a  tales,  which  should  be  a  great  de- 
lay of  tryalls.  So  as  in  this  case  usage  and  ancient  course  maketh  law. 
And  it  seemeth  to  me,  that  the  law  in  this  case  delighteth  herself e  in 
the  number  of  12 ;  for  there  must  not  onely  be  12  jurors  for  the  tryall 
of  matters  of  fact,  but  12  judges  of  ancient  time  for  tryall  of  matters 
of  law  in  the  Exchequer  Chamber.  Also  for  matters  of  state  there 
were  in  ancient  time  twelve  Counsellors  of  State.  He  that  wageth 
his  law  must  have  eleven  others  with  him,  which  thinke  he  says  true. 
And  that  number  of  twelve  is  much  respected  in  holy  writ,  as  12  apos- 
tles, 12  stones,  12  tribes,  &c. 

He  that  is  of  a  jury,  must  be  liber  homo,  that  is,  not  only  a  freeman 
and  not  bond,  but  also  one  that  hath  such  freedome  of  mind  as  he 
stands  indifferent  as  he  stands  unsworne.  Secondly,  he  must  bee  le- 
galis.  And  by  the  law  every  juror,  that  is  returned  for  the  tryall  of 
any  issue  or  cause,  ought  to  have  three  properties. 

First,  he  ought  to  be  dwelling  most  neere  to  the  place  where  the 
question  is  moved. ^ 

Secondly,  he  ought  to  be  most  sufficient  both  for  understanding,  and 
■competencie  of  estate. 

Thirdly,  he  ought  to  be  least  suspitious,  that  is,  to  be  indifferent  as 
he  stands  unsworne:  and  then  he  is  accounted  in  law  liber  et  legalis 
homo ;  otherwise  he  may  be  challenged,  and  not  suffered  to  be  sworne. 

Coke  on  Littleton,  bk.  2,  c.  12,  §  234:,  155,  a. 


When  the  defendants  have  put  themselves  upon  the  country,  and 
the  jurors  are  come  into  court,  they  may  be  challenged  in  the  follow- 
ing form:  Sir,  this  man  ought  not  to  be  upon  the  jury,  because  he  in- 
dicted me,  and  I  presume  of  him  and  all  those  who  indicted  me,  that 
they  still  bear  the  same  ill  will  against  me  as  when  they  indicted  me. 

waiver.  Warwick  v.  State.  47  Ark.  5GS,  2  S.  W.  335  (1SS6).  But  see,  State 
V.  Wiley,  82  Mo.  App.  61  (1899). 

Waiver  by  defendant's  attorney  without  tbe  consent  of  defendant  does  not 
bind  him.     U.  S.  v.  Shaw  (D.  C.)  59  Fed.  110  (1893). 

8  "Thougli  the  ancient  law  continues  in  force  as  to  trials  for  crimes,  yet 
it  hath  been  long  deviated  from  in  practice.  *  *  *  The  sheriffs,  as  we  are 
well  informed,  now  always  summoning  juries  from  the  county  at  lar?e.  with- 
out the  least  regard  to  the  visne  of  each  indictment."  Butler  and  Hargraves' 
Coke  on  Littleton,  125,  a,  note  191. 


Ch.  12)  TRIAL.  213 

And  we  will  that,  where  a  man's  life  is  at  stake,  this  exception  shall 
be  allowed.  They  may  also  be  challenged  in  many  other  ways  besides 
this,  as  shall  be  shown  in  treating  of  exceptions.  And  when  the  ac- 
cused either  cannot  or  will  not  challenge  the  jurors,  or  there  are  jurors 
enough  unchallenged,  to  the  number  of  twelve,  let  them  go  to  the 
book.  If  there  are  not  sufficient,  let  the  challenges  be  tried;  and  if 
the  challenges  be  found  true,  so  that  there  are  not  full  twelve  remain- 
ing, let  another  day  be  appointed,  and  let  the  sheriff  summon  more. 
Britton,  bk.  1,  12. 


The  term  "challenge"  is  used  in  law  for  an  exception  to  jurors  who 
are  returned  to  pass  on  a  trial,  and  it  is  either  to  the  array  or  to  the 
polls.  To  the  array  is  when  exception  is  taken  to  the  whole  number 
impanneled ;  and  to  the  polls  is  when  some  one  or  more  are  excepted 
against  as  not  indifferent.  Challenge  to  jurors  is  also  divided  into 
challenge  principal  or  peremptory,  and  challenge  per  cause ;  i.  e.,  upon 
cause  or  reason. 

The  challenges  to  the  array,  or  the  polls,  may  be  made  either  by  the 
crown  or  the  defendant.  On  the  part  of  the  former,  it  seems  that  at 
common  law  any  number  of  jurors  might  have  been  peremptorily  chal- 
lenged, without  alleging  any  other  reason  for  the  objection  than  "quod 
non  boni  sunt  pro  rege." 

Challenges  on  behalf  of  the  defendant  are  either  peremptory  or  with 
cause.  Peremptory  challenges  are  those  which  are  made  to  the  juror 
without  assigning  any  reason  and  which  the  courts  are  compelled  to 
allow.  The  number  which,  in  all  cases  of  felony,  the  prisoner  was  al- 
lowed by  the  common  law  thus  peremptorily  to  challenge,  amount  to 
thirty-five,  or  one  under  the  number  of  three  full  juries.  This  num- 
ber has,  however,  been  altered  by  several  legislative  provisions.  So 
that,  at  the  present  day,  in  cases  of  high  and  petit  treason,  the  pris- 
oner has  thirty-five  peremptory  challenges ;  in  murders  and  all  other 
felonies,  twenty;  and  in  misprision  of  treason,  the  point  seems  to  be 
unsettled. 

The  right  of  peremptorily  challenging  is  admitted  only  in  favor  of 
life;  and,  though  it  may  be  demanded  even  in  clergyable  felonies,  it 
can  never  be  allowed  to  a  defendant  accused  of  a  mere  misdemeanor. 

Challenges  for  cause  are  of  two  kinds — first,  to  the  whole  array : 
second,  to  individual  jurymen.  To  challenge  the  arr-ay  is  to  except  at 
once  to  all  the  jurors  in  the  panel  on  account  of  some  original  defect 
in  making  the  return  to  the  venire.  It  is  either  a  principal  challenge 
or  for  favor,  the  former  of  which  is  founded  on  some  manifest  par- 
tiality, and  is  therefore  decisive,  while  the  grounds  of  the  latter  are 
less  certain,  and  left  to  the  determination  of  triers,  in  the  manner  we 
shall  state  hereafter.  The  legitimate  causes  of  a  principal  challenge 
are  not  very  numerous.  Thus,  if  the  sheriff  be  the  actual  prosecutor 
or  the  party  aggrieved,  the  array  may  be  challenged,  though  no  objec- 


214  TRIAL.  (Cll.  12 

tion  can  be  taken  in  arrest  of  judgment.  So  if  the  sheriff  be  of  actual 
affinity  to  either  of  the  parties,  and  the  relationship  be  existing  at  the 
time  of  the  return ;  if  he  return  any  individual  at  the  request  of  the 
prosecutor  or  the  defendant,  or  any  person  whom  he  believes  to  be 
more  favorable  to  one  side  than  to  the  other;  if  an  action  of  battery 
be  depending  between  the  sheriff  and  the  defendant,  or  if  the  latter 
have  an  action  of  debt  against  the  former — the  array  may  be  quashed 
on  the  presumption  of  partiality  in  the  officer.  So,  also,  if  the  sheriff, 
or  his  bailiff  who  makes  the  return,  is  under  the  distress  of  the  party 
indicting  or  indicted,  or  has  any  pecuniary  interest  in  the  event,  or  is 
counsel,  attorney,  servant,  or  arbitrator  in  the  same  cause,  a  principal 
challenge  will  be  admitted.  And,  in  general,  the  same  reasons  which 
we  have  already  seen  would  cause  it  to  be  directed  to  the  coroners  or 
elisors  will  also  be  sufficient  to  quash  the  array,  when  partiality  may 
reasonably  be  suspected.  For  all  these  causes  of  suspicion,  the  king 
may  challenge  as  well  as  the  defendant. 

Causes  of  challenge  for  favor  are  when  one  of  the  parties  is  tenant 
to  the  sheriff,  if  the  sheriff  has  an  action  of  debt  against  him,  or  where 
a  relationship  does  not  subsist  between  the  party  and  the  officer  im- 
mediately, but  between  their  children ;  for,  as  these  circumstances  do 
not  necessarily  imply  partiality,  they  are  no  ground  of  a  principal  chal- 
lenge. 

If  the  challenge  to  the  array  be  determined  against  the  party  by 
whom  it  was  made,  he  may  afterward  have  his  challenge  to  the  polls ; 
that  is,  he  may  separately  object  to  each  juryman  as  he  is  about  to 
be  sworn.  And  challenges  to  the  polls,  like  those  to  the  array,  are 
either  principal  or  to  the  favor;  and  after  challenging  thirty-five  ju- 
rors in  treason,  and  twenty  in  felony,  peremptorily,  the  defendant  may, 
for  cause  shown,  challenge  as  many  jurors  as  may  be  called,  so  as  to 
exhaust  one  or  more  panels,  if  his  causes  of  objection  be  well  founded.'* 
The  most  important  causes  of  the  first  of  these  descriptions  of  chal- 
lenges are  propter  honoris,  propter  defectum,  propter  affectum,  and 
propter  delictum,  which  we  shall  now  proceed  to  consider. 

A  challenge  propter  defectum  may  be  either  on  account  of  some 
personal  objection,  as  alienage,  infancy,  old  age,  or  a  deficiency  in  the 
requisite  property. 

The  third  description  of  challenges  are  those  which  arise  propter 
affectum,  or  on  the  ground  of  some  presumed  or  actual  partiality  in 
the  juryman  who 'is  made  the  subject  of  objection.  For  the  writ,  re- 
quiring that  the  jury  should  be  free  from  all  exception  and  of  no  af- 
finity to  either  party,  must  evidently  include  both  these  grounds  of 
challenge.  If,  therefore,  the  juror  is  related  to  either  party  within 
the  ninth  degree,  though  it  is  only  by  marriage,  a  principal  challenge 

9  The  number  of  peremptory  challenges  allowed  is  now  generally  fixed  by 
statute,  and  varies  in  different  states.  See,  Teople  v.  Keating,  01  Hun,  2G(), 
16  N.  Y.  Supp.  74S  (1891) ;  .State  v.  Anderson,  59  S.  O.  220,  37  S.  E.  820  (1901) ; 
State  V.  Iloyt,  47  Conn.  ,318,  36  Am.  Rep.  89  (1880). 


Ch.  12)  TRIAL.  215 

will  be  admitted.^ °  So  also  if  he  has  acted  as  godfather  to  a  child  of 
the  prosecutor  or  defendant,  he  may  be  challenged  for  that  reason. 
And  it  will  be  no  answer  to  such  a  challenge  that  he  is  also  related  to 
the  other  party,  because  by  the  terms  of  the  writ  he  ought  to  be  akin 
to  neither.  Thus  also  if  the  juryman  be  under  the  power  of  either 
party  or  in  his  employment,  or  if  he  is  to  receive  part  of  a  fine  upon 
conviction,  or  if  he  has  been  chosen  arbitrator  in  case  of  a  personal 
injury  for  one  of  the  parties,  or  has  eaten  and  drank  at  his  expense, 
he  may  be  challenged  by  the  other.  So  if  there  are  actions  depending 
between  the  juryman  and  one  of  the  parties,  which  imply  hostility, 
that  will  be  a  ground  of  principal  challenge,  though  other  actions  only 
warrant  challenges  to  the  favor.  And,  in  general,  the  causes  of  this 
nature  which  would  justify  a  challenge  to  the  array,  on  the  ground 
of  the  presumed  partiality  of  the  sheriff,  will  be  sufficient  exceptions 
to  an  individual  juror. 

An  actual  partiality  may  also  be  shown,  as  well  as  a  supposed  bias. 
Thus  if  a  juryman  has  expressed  his  wishes  as  to  the  result  of  the 
trial,  or  his  opinion  of  the  guilt  or  innocence  of  the  defendant,  with  a 
malicious  intention,  on  evidence  of  those  facts,  he  will  be  set  aside. 
And  if  either  party  has  exhorted  him  as  to  the  nature  of  his  verdict, 
he  may  be  challenged,  but  not  if  the  entreaty  merely  were  to  attend 
and  act  according  to  his  conscience.  If  it  be  proved  that  the  juror 
lias,  in  contempt,  called  his  dogs  by  the  names  of  the  king's  witnesses, 
that  will  be  a  sufficient  ground  of  challenge  on  behalf  of  his  majesty. 

By  the  statute  25  Edw.  Ill,  c.  3,  a  man  who  has  acted  as  a  grand 
juryman  on  the  finding  of  a  bill  of  indictment  may  be  objected  to  if 
returned  to  serve  on  the  petit  jury. 

I  ..e  lasL  grtiuiKl  for  a  principal  challenge  to  the  polls  is  propter  de- 
lictum, or  the  legal  incompetence  of  the  juror  on  the  ground  of  in- 
famy. Thus  if  he  has  been  convicted  or  attainted  of  treason,  felony, 
perjury,  conspiracy,  or  any  crime  for  which  he  ought  to  lose  life  or 
member,  or  if  for  some  infamous  offense,  he  has  received  judgment 
of  the  pillory,  tumbrel,  or  other  shameful  exposure,  or  to  be  whipped, 
branded,  or  stigmatized;  or  if  he  has  been  attainted  of  false  verdict, 
praemunire  or  forgery;  or  outlawed  or  excommunicated,  or  if  he  has 
proved  recreant  when  champion  in  the  trial  by  battle — he  may  be  chal- 
lenged and  the  exception  must  prevail.  And,  in  these  cases,  even  the 
king's  pardon  will  not  remedy  the  defect  which  the  operation  of  jus- 
tice has  created. 

Challenge  to  the  polls  for  favor,  are  when,  though  the  juror  is  not 
so  evidently  partial  as  to  amount  to  a  principal  challenge,  yet  there  are 

10  "The  great-grandmother  of  the  jin-or  Ray  was  the  sister  of  the  grand- 
mother of  the  prisoner.  *  *  *  in  this  case,  the  juror  Ray  Avas  within  the 
prescribed  degree  related  to  the  prisoner.  From  the  grandmother  were  three 
degrees,  and  from  the  great-grandmother  four,  malcing  in  the  wliole  seven  de- 
grees, which  was  a  cause  of  principal  challenge  on  the  part  of  the  state,  and 
the  juror  was  properly  rejected."  Nash,  C.  J.,  in  State  v.  Perry,  44  N.  C.  330 
(1853). 


216  TRIAL.  (Ch.  12 

reasonable  grounds  to  suspect  that  he  will  act  under  some  undue  in- 
fluence or  prejudice.  The  causes  of  such  a  challenge  are  manifestly 
numerous  and  dependent  on  a  variety  of  circumstances ;  for  the  ques- 
tion to  be  tried  is  whether  the  juryman  is  altogether  indifferent  as  he 
stands  unsworn,  because  he  may  be  even  unconsciously  to  himself 
swayed  to  one  side,  and  indulge  his  own  feelings  when  he  thinks  he 
is  influenced  entirely  by  the  weight  of  evidence.  And,  in  general,  the 
same  circumstances  will  operate  as  a  ground  of  objection  to  the  favor 
of  a  single  juryman,  as  we  have  seen  may  be  urged  on  a  challenge  to 
the  array,  for  the  partiality  of  the  returning  officer. 
1  Chitty,  Cr.  Law,  533-545. 


UNITED  STATES  v.  BURR. 

(Circuit  Court  of  the  United  States,  1807.     Robertson's  Trial  of  Aaron  Burr, 
4G4,  25  Fed.  Cas.  50.) 

Marshall,  Chief  Justice.^^  The  great  value  of  the  trial  by  jury 
certainly  consists  in  its  fairness  and  impartiality.  Those  who  most 
prize  the  institution  prize  it  because  it  furnishes  a  tribunal  which  may 
be  expected  to  be  uninfluenced  by  any  undue  bias  of  the  mind. 

I  have  always  conceived,  and  still  conceive,  an  impartial  jury  as  re- 
quired by  the  common  law,  and  as  secured  by  the  Constitution,  must  be 
composed  of  men  who  will  fairly  hear  the  testimony  which  may  be  of- 
fered to  them,  and  bring  in  their  verdict  according  to  that  testimony, 
and  according  to  the  law  arising  on  it.  This  is  not  to  be  expected, 
certainly  the  law  does  not  expect  it,  where  the  jurors,  before  they  hear 
the  testimony,  have  deliberately  formed  and  delivered  an  opinion  that 
the  person  whom  they  are  to  try  is  guilty  or  innocent  of  the  charge  al- 
leged against  him. 

The  jury  should  enter  upon  the  trial  with  minds  open  to  those  im- 
pressions which  the  testimony  and  the  law  of  the  case  ought  to  make, 
not  with  those  preconceived  opinions  which  will  resist  those  impres- 
sions. 

All  the  provisions  of  the  law  are  calculated  to  obtain  this  end.  Why 
is  it  that  the  most  distant  relative  of  a  party  cannot  serve  upon  his 
jury?  Certainly  the  single  circumstance  of  relationship,  taken  in  itself, 
unconnected  with  its  consequences,  would  furnish  no  objection.  The 
real  reason  of  the  rule  is  that  the  law  suspects  the  relative  of  partial- 
ity ;  suspects  his  mind  to  be  under  a  bias  which  will  prevent  his  fairly 
hearing  and  fairly  deciding  on  the  testimony  which  may  be  ofi^ered  to 
him.  The  end  to  be  obtained  is  an  impartial  jury.  To  secure  this  end, 
a  man  is  prohibited  from  serving  on  it  whose  connection  with  a  party 
is  such  as  to  induce  a  suspicion  of  partiality.  The  relationship  may  be 
remote,  the  person  may  never  have  seen  the  party,  he  may  declare  that 

II  Part  of  this  ODinion  is  omitted. 


Ch.  12)  TRIAL.  217 

he  feels  no  prejudice  in  the  case,  and  yet  the  law  cautiously  incapaci- 
tates hnn  from  serving  on  the  jury,  because  it  suspects  prejudice;  be- 
cause in  general  persons  in  a  similar  situation  would  feel  prejudice. 

It  would  be  strange  if  the  law  were  chargeable  with  the  inconsis- 
tency of  thus  carefully  protecting  the  end  from  being  defeated  by  par- 
ticular means,  and  leaving  it  to  be  defeated  by  other  means.  It  would 
be  strange  if  the  law  would  be  so  solicitous  to  secure  a  fair  trial  as  to 
exclude  a  distant  unknown  relative  from  the  jury,  and  yet  be  totally 
regardless  of  those  in  whose  minds  feelings  existed  much  more  unfa- 
vorable to  an  impartial  decision  of  the  case. 

It  is  admitted  that,  where  there  are  strong  personal  prejudices,  the 
person  entertaining  them  is  incapacitated  as  a  juror;  but  it  is  denied 
that  fixed  opinions  respecting  his  guilt  constitutes  a  similar  incapacity. 

Why  do  personal  prejudices  constitute  a  just  cause  of  challenge? 
Solely  because  the  individual  who  is  under  their  influence  is  presumed 
to  have  a  bias  on  his  mind  which  will  prevent  an  impartial  decision  of 
the  case  according  to  the  testimony.  He  may  declare  that  notwith- 
standing these  prejudices  he  is  determined  to  listen  to  the  evidence 
and  be  governed  by  it ;   but  the  law  will  not  trust  him. 

Is  there  less  reason  to  suspect  him  who  has  prejudged  the  case,  and 
has  deliberately  formed  and  delivered  an  opinion  upon  it?  Such  a 
person  may  believe  that  he  will  be  regulated  by  testimony,  but  the  law 
suspects  him,  and  certainly  not  without  reason.  He  will  listen  with 
more  favor  to  that  testimony  which  confirms  than  to  that  which  would 
change  his  opinion.  It  is  not  to  be  expected  that  he  will  weigh  evi- 
dence or  argument  as  fairly  as  a  man  whose  judgment  is  not  made  up 
in  the  case. 

It  is  for  this  reason  that  a  juror  who  has  once  rendered  a  verdict 
in  a  case,  or  who  has  been  sworn  on  a  jury  which  has  been  divided, 
cannot  again  be  sworn  in  the  same  case.  He  is  not  suspected  of  per- 
sonal prejudices,  but  he  has  formed  and  delivered  an  opinion,  and  is 
therefore  deemed  unfit  to  be  a  juror  in  the  cause. 

Were  it  possible  to  obtain  a  jury  without  any  prepossessions  what- 
ever respecting  the  guilt  or  innocence  of  the  accused,  it  would  be  ex- 
tremely desirable  to  obtain  such  a  jury;  but  this  is  perhaps  impossi- 
ble, and  therefore  will  not  be  required.  The  opinion  which  has  been 
avowed  by  the  court  is  that  light  impressions  which  may  fairlv  be  sup- 
posed to  yield  to  the  testimony  that  may  be  offered,  which  may  leave 
the  mind  open  to  a  fair  consideration  of  that  testimony,  constitute  no 
sufficient  objection  to  a  juror;  but  that  those  strong  and  deep  impres- 
sions, which  will  close  the  mind  against  the  testimony  that  may  be  of- 
fered in  opposition  to  them,  which  will  combat  that  testimony  and  re- 
sist its  force,  do  constitute  a  sufficient  objection  to  him.  Tliose  who 
try  the  impartiality  of  a  juror  ought  to  test  him  by  this  rule.  Thev 
ought  to  hear  the  statement  made  by  himself  or  given  by  others,  and 
conscientiously  determine,  according  to  their  best  judgment,  whether 
in  general  men  under  such  circumstances  ought  to  be  considered  as 


218  TRIAL.  (Ch.  12 

capable  of  hearing  fairly,  and  of  deciding  impartially,  on  the  testimony 
which  may  be  offered  to  them,  or  as  possessing  minds  in  a  situation 
to  struggle  against  the  conviction  which  that  testimony  might  be  cal- 
culated to  produce.  The  court  has  considered  those  who  have  delib- 
erately formed  and  delivered  an  opinion  on  the  guilt  of  the  prisoner 
as  not  being  in  a  state  of  mind  fairly  to  weigh  the  testimony,  and 
therefore  as  being  disqualified  to  serve  as  jurors  in  the  case. 

This  much  has  been  said  relative  to  the  opinion  delivered  yesterday, 
because  the  argument  of  to-day  appears  to  arraign  that  opinion,  and 
because  it  seems  closely  connected  with  the  point  which  is  now  to  be 
decided. 

The  question  now  to  be  decided  is  whether  an  opinion  formed  and 
delivered,  not  upon  the  full  case,  but  upon  an  essential  part  of  it,  not 
that  the  prisoner  is  absolutely  guilty  of  the  whole  crime  charged  in 
the  indictment,  but  that  he  is  guilty  in  some  of  those  great  points 
which  constitute  it,  do  also  disqualify  a  man  in  the  sense  of  the  law 
and  of  the  Constitution  from  being  an  impartial  juror?  This  question 
was  adjourned  yesterday  for  argument,  and  for  further  consideration. 

It  would  seem  to  the  court  that  to  say  that  any  man  who  had  formed 
an  opinion  on  any  fact  conducive  to  the  final  decision  of  the  case  would 
therefore  be  considered  as  disqualified  from  serving  on  the  jury  would 
exclude  intelligent  and  observing  men,  whose  minds  were  really  in  a 
situation  to  decide  upon  the  whole  case  according  to  the  testimony, 
and  would  perhaps  be  applying  the  letter  of  the  rule  requiring  an  im- 
partial jury  with  a  strictness  which  is  not  necessary  for  the  preserva- 
tion of  the  rule  itself.  But  if  the  opinion  formed  be  on  a  point  so  es- 
sential as  to  go  far  towards  a  decision  of  the  whole  case,  and  to  have 
a  real  influence  on  the  verdict  to  be  rendered,  the  distinction  between 
a  person  who  has  formed  such  an  opinion,  and  one  who  has  in  his 
mind  decided  the  whole  case,  appears  too  slight  to  furnish  the  court 
with  solid  ground  for  distinguishing  between  them.  The  question 
must  always  depend  on  the  strength  and  nature  of  the  opinion  which 
has  been  formed. 

In  the  case  now  under  consideration  the  court  would  perhaps  not 
consider  it  as  a  sufficient  objection  to  a  juror  that  he  did  believe  and 
had  said  that  the  prisoner,  at  a  time  considerably  anterior  to  the  fact 
charged  in  the  indictment,  entertained  treasonable  designs  against  the 
United  States.  He  may  have  formed  this  opinion,  and  be  undecided 
on  the  question  whether  those  designs  were  abandoned  or  prosecuted 
up  to  the  time  when  the  indictment  charges  the  overt  act  to  have  been 
committed.  On  this  point  his  mind  may  be  open  to  the  testimony,  al- 
though it  would  be  desirable  that  no  juror  should  have  formed  and  de- 
livered such  an  opinion,  yet  the  court  is  inclined  to  think  it  would  not 
constitute  sufficient  cause  of  challenge.  But,  if  the  juror  have  made 
up  and  declared  the  opinion  that  to  the  time  when  the  fact  laid  in  the 
indictment  is  said  to  have  been  committed  the  prisoner  was  prosecut- 
ing the  treasonable  design  with  which  he  is  charged,  the  court  con- 


Ch.  12)  TRIAL.  219 

siclers  the  opinion  as  furnishing-  just  cause  of  challenge,  and  cannot 
view  the  juror  who  has  formed  and  delivered  it  as  impartial,  in  the 
legal  and  constitutional  sense  of  that  term.     *     *     * 


LESTER  V.  STATE. 

(Court  of  Appeals  of  Texas,  1S77.    2  Tex.  App.  432.) 

White,  J.^-  *  *  *  With  regard  to  the  jury  which  tried  the 
case,  we  find  two  questions  presented  in  the  motion  for  a  new  trial  and 
bill  of  exceptions,  and  which  are  also  assigned  as  error.  The  first  is 
that,  in  testing  the  qualifications  of  the  jurors,  the  court  permitted  the 
county  attorney,  over  the  objections  of  the  defendant,  to  ask  the  jury 
"if  they  could  return  the  same  kind  of  a  verdict  against  a  white  man 
for  killing  a  negro  that  they  would  against  a  white  man  for  killing 
another  white  man,  upon  the  same  evidence."     *     '•'     ^'^ 

It  is  gravely  urged  in  the  brief  of  counsel,  from  which  we  quote, 
that  "appellant  is  a  white  man  and  a  Democrat ;  the  deceased  was  a 
negro,  and,  of  course,  a  Republican.  On  account  of  the  test  to  the 
jury,  no  juror  was  permitted  to  try  the  case  until  he  had,  in  effect, 
taken  an  oath  that  he  regarded  a  negro  as  highly  as  he  did  a  white  man. 
By  this  means  jurors  of  the  political  belief  of  appellant  were  excluded, 
although  thoroughly  and  legally  competent  to  try  the  case,  and  ap- 
pellant was  tried  by  his  political  enemies,  with  the  question  of  race 
fairly  raised  and  at  issue." 

We  cannot  express  too  forcibly  our  condemnation  of  such  argu- 
ments and  appeals  to  political  passions  and  prejudices.  The  very  fact 
that  they  are  made  proves  the  necessity  of  guarding  against  them  in 
the  execution  of  the  law.  The  law,  we  think,  has  properly  made  it  a 
crime  equal  in  magnitude  to  kill  a  negro  as  to  kill  a  white  man,  and 
denounces  its  punishment  for  such  crime  equally  alike,  without  refer- 
ence to  race,  color,  previous  condition,  or  political  considerations.  If 
there  be,  as  the  argument  indicates,  in  the  country,  men  who  feel  and 
believe,  morally,  socially,  politically,  or  religiously,  that  it  is  not  mur- 
der for  a  white  man  to  take  the  life  of  a  negro  with  malice  afore- 
thought, then  we  unhesitatingly  say  such  men  are  not  fit  jurors,  in 
contemplation  of  law,  to  try  a  white  man  for  such  a  crime.  Men 
holding  such  opinions  cannot  be  said  to  be  without  bias  or  prejudice 
in  favor  of  a  white  man  who  is  the  defendant;  and  bias  or  prejudice 
is,  as  we  have  seen,  one  of  the  grounds  of  challenge  for  cause  set  forth 
in  the  statute. 

The  court  did  not,  therefore,  err  in  permitting  the  question  to  be 
asked,  in  order  to  elicit  with  certainty  this  fact  in  regard  to  the  bias 

1-  Part  of  this  case  is  omitted. 


220  TRIAL.  .  (Ch.  12 

or  prejudice  of  the  jurors ;   and  the  statute  declares  that  "the  court  is 
the  judge,  after  proper  examination,  of  the  qualifications  of  a  juror." 
Pasch.  Dig.  art.  3044.     *     *     * 
Judgment  reversed.^ ^ 


CAVITT  V.  STATE. 
(Court  of  Appeals  of  Texas,  1883.    15  Tex.  App.  190.) 

WiivivSON,  J.^*  sjs  *  *  It  appears  from  a  bill  of  exception  in  the 
record  that,  in  testing  the  qualifications  of  jurors,  the  defendant  pro- 
posed to  propound  to  each  person  offered  as  a  juror  the  following 
question,  viz. :  "Have  you  the  same  neighborly  regard  for  this  defend- 
ant, though  a  negro,  and  his  race  generally,  as  you  have  for  individuals 
of  the  white  race?"  Objection  being  made  to  this  question  by  the  dis- 
trict attorney,  the  court  would  not  allow  it  to  be  propounded,  but  each 
juror  was  asked  the  statutory  questions,  and,  in  addition  thereto,  the 
defendant  was  permitted  to  ask  each  juror  "if  he  could  and  would 
give  to  the  defendant  the  same  fair  and  impartial  trial  under  the  law 
and  the  evidence  that  he  would  give  to  a  white  man  under  the  same 
circumstances,  and  would  try  the  case  without  regard  to  the  question 
of  color."  It  is  true  that  proper  questions  to  test  the  bias  in  favor  of, 
or  the  prejudice  against  a  defendant,  should  be  allowed  in  examining 
as  to  the  fitness  of  a  person  offered  as  a  juror  to  serve  as  such.  But 
a  question,  to  be  proper,  should  be  directed  to  the  issue  as  to  whether 
or  not  the  person  proposed  as  a  juror  is  impartial,  and  in  a  condition 
of  mind  and  feeling  to  try  the  case  fairly. 

We  cannot  perceive  that  the  question  proposed  by  the  defendant 
would  be  a  proper  one.  If  answered  by  the  person  to  whom  pro- 
pounded in  the  negative,  it  certainly  would  not  disqualify  him  as  a 
juror,  nor  would  it  show  that  he  was  prejudiced  against  the  defend- 
ant, or  the  defendant's  race,  nor  that  such  person  would  be  likely  to  be 
influenced  in  his  verdict  because  he  did  not  have  the  same  "neighborly 
regard"  for  a  negro  that  he  had  for  a  w'hite  man.  If  this  were  held 
to  be  sufficient  cause  to  disqualify  a  person  from  serving  as  a  juror, 
then  all  juries  would  have  to  be  selected  with  reference  to  the  race, 
nationality  or  class  to  which  the  defendant  belonged;  for,  as  a  general 
rule,  no  white  man  has  the  same  neighborly  or  social  regard  for  a 
negro  that  he  has  for  a  white  man,  and  the  case  is  the  same  with  the 
negro.  So  with  the  Mexican,  the  Irishman,  the  German;  they  have 
a  greater  neighborly  regard  for  their  own  countrymen  than  for  an 
American,  and  the  American  has  a  stronger  neighborly  regard  for  one 
of  his  own  country  than  for  a  foreigner.  This  same  objection  as  to 
neighborly  regard  would  apply  to  classes  as  well  as  to  races  or  na- 

13  The  judgment  was  reversed  on  other  grounds. 

14  Part  of  this  case  is  omitted. 


€h.  12)  TRIAL.  221 

tionalities;  to  farmers,  merchants,  mechanics,  doctors,  lawyers,  etc. 
An  individual  generally  has  a  stronger  neighborly  regard  for  one  of 
his  own  class  than  for  one  of  a  dififerent  class.  We  think  the  court 
was  correct  in  refusing  to  permit  the  proposed  question  to  be  pro- 
pounded.    Lester  v.  State,  2  Tex.  App.  432. 

But,  even  if  the  question  was  improperly  rejected,  the  rejection  of 
it  was  a  matter  within  the  discretion  of  the  trial  judge,  the  exercise 
of  which  discretion  would  not  be  revised  by  this  court,  unless  it  was 
made  clearly  to  appear  to  us  that  the  same  had  been  abused  to  the 
prejudice  of  the  accused;  and  in  this  case  it  does  not  so  appear.    Ray 

V.  State,  4  Tex.  App.  450;    Gardenhire  v.  State,  G  Tex.  App.    14T. 

*     *     * 

Affirmed. 


HELM  V.  STATE. 

(Supreme  Court  of  Mississippi,  1890.    G7  Miss.  562,  7  South.  487.) 

Woods,  C.  J.^^  *  *  *  The  assignment  of  error  which  raises  the 
disqualification  of  the  juror  Johnson  because  of  his  prejudice  is  not 
well  taken.  There  is  nothing  in  all  the  evidence  on  this  proposition 
which  is  even  persuasive  to  show  that  Johnson  was  not  altogether  com- 
petent to  serve  as  a  juror.  The  juror  is  not  shown  to  have  ever  heard 
what  the  evidence,  or  any  part  of  it,  was,  before  he  heard  it  in  the  jury 
box ;  and  it  seems  impossible  that  he  could  have  either  formed  or  ex- 
pressed an  opinion  as  to  defendant's  guilt,  in  the  absence  of  proof  of 
any  knowledge  of  the  evidence.  He  is  shown,  fairly  well,  to  have  had 
not  a  favorable  opinion  of  the  character  of  the  accused,  and  perhaps 
no  better  opinion  of  that  of  the  deceased ;  but,  if  a  good  opinion  of  the 
character  of  every  accused  person  shall  be  held  requisite  for  qualifi- 
cation for  jury  service,  then  the  worst  class  of  criminals  must,  ordi- 
narily, go  unwhipped  of  public  justice.  There  was  no  hostility  or  un- 
friendliness to  the  man.  There  was,  at  the  most,  disapprobation  of  his 
unlovely  character.  But  this  did  not  and  should  not  be  held  disquali- 
fication as  a  juror.  Nor  was  there  such  evidence  of  a  preconceived 
opinion  as  will  warrant  us  in  saying  the  court  below  was  not  justified 
in  refusing  to  beheve  that  the  juror,  in  this  instance,  was  so  biased  as 
to  unfit  him  for  jury  service.     =f=     *     * 

The  judgment  of  the  court  below  was  abundantly  warranted  by  the 
evidence,  and  is  approved  by  us.    Affirmed. 

15  The  statement  of  'facts,  tlie  argumeuts  of  counsel  aud  part  of  the  opiuioii 
are  omitted. 


222  TRIAL.  ,(Ch.  12 

SWIGART  V.  STATE. 

(Supreme  Court  of  ludituia,  1879.     G7  Incl.  287.) 

BiDDivie,  J.  The  appellant  was  indicted,  under  section  17  of  the  liq- 
uor law  of  March  17,  1875  (1  Rev.  St.  1876,  p.  869),  for  keeping  a  li- 
censed saloon  in  a  disorderly,  manner.  Trial  by  a  jury,  conviction  and 
fine.    He  appeals. 

A  motion  to  quash  the  indictment,  and  a  motion  in  arrest  of  judg- 
ment, were  overruled,  and  exceptions  reserved.  No  error  was  com- 
aiitted  in  these  rulings.    The  indictment  is  clearly  sufficient. 

At  the  trial,  Isaac  Chamness  was  called  as  a  juror,  and,  upon  his 
voire  dire,  was  submitted  to  the  following  examination : 

"Question.  Do  you  think  a  man  who  is  engaged  in  selling  intoxicat- 
ing liquor  under  a  license  is  engaged  in  a  legitimate  business  ? 

"Answer.  Never  thought  it  a  legitimate  business,  although  the  law 
did  grant  it. 

"Question.  Do  you  think  a  man  engaged  in  the  sale  of  liquor  under 
a  license  is  a  moral  man  ? 

"Answer.  I  think  not ;  I  think  him  immoral." 

To  a  further  question  the  juror  answered  "that  he  had  not  such 
prejudice  as  would  influence  him  in  determining  the  cause;  that  he 
could  give  the  defendant  a  fair  and  impartial  trial,  according  to  the 
law  and  the  evidence." 

Upon  this  examination  the  defendant  challenged  the  juror  for  cause. 
The  challenge  was  overruled,  and  the  juror  impaneled.  Exceptions 
reserved. 

Was  the  juror  competent  to  serve  in  the  case? 

We  think  he  was  not.  He  might  have  been  put  in  a  position  by  the 
evidence  in  the  case  which  would  require  him  to  either  break  the  law 
or  violate  his  moral  sense,  and  thus  necessarily  be  gored  by  one  horn 
or  the  other  of  the  dilemma.  Law  is  uniform,  and  binds  all.  The  mor- 
al sense  is  as  variable  as  the  difference  between  human  beings,  and 
binds  no  one  but  the  individual.  Each  person  will  be  protected  in  his 
moral  sense,  but  one  man's  moral  sense  cannot  be  forced  upon  another. 
The  law  is  to  be  administered  on  legal  grounds  only,  and  what  the  law 
authorizes  it  will  not  hold  immoral.  Conscientious  scruples  in  inflicting 
the  death  penalty  will  render  a  juror  incompetent  to  try  a  charge  of 
murder  in  a  case  where  the  punishment  may  be  death ;  much  stronger 
are  the  reasons  to  disqualify  a  juror  when  he  is  called  upon  to  adjudge 
a  law,  and  decide  upon  the  facts  of  a  pursuit  which  it  authorizes  and 
upholds,  both  of  which  he  regards  as  immoral.  The  appellant  was  en- 
titled to  a  juror  who  could,  without  violating  his  moral  sense,  either 
convict  him  or  acquit  him  of  the  charge,  according  to  the  law  as  it  is, 
and  the  facts  as  they  were  proved  in  the  case.  Keiser  v.  Lines,  57  Ind. 
431. 


Ch.  12)  TRIAL.  223 

The  judgment  is  reversed,  and  the  cause  remanded,  with  instruc- 
tions to  sustain  the  motion  for  a  new  trial,  and  to  proceed  according  to 
this  opinion.^" 


SECTION  3.— TIME  OF  TRIAL 


It  hath  also  been  thought  unmeet  that  they  should  trie  a  felon  the 
same  day  in  which  they  awarded  the  venire  facjas  against  the  jurie, 
22  Edw.  IV,  44,  Fitz.  tit.  Coron.  44,  but  that  hath  no  necessitie,  and 
the  law  is  now  otherwise  taken. 

Lambard's  Eirenarcha,  551. 

16  "One  of  the  jurors,  after  having  heen  asked  this  question,  and  also 
whether  he  had  any  such  opinions  as  would  preclude  him  from  finding  a  de- 
fendant guilty  of  an  offense  punishable  with  death,  in  reply  to  the  latter  in- 
quiry, said  that  he  was  opposed  to  capital  punishment,  but  that  he  did  not 
think  that  his  opinions  would  interfere  with  his  doing  his  duty  as  a  juror ; 
that  as  a  legislator  he  should  be  in  favor  of  altering  the  law,  but  he  believed 
that  he  could  execute  it  as  a  juror,  as  it  was.  The  court  intimated  to  the 
juror  that  he  must  decide  for  himself  whether  the  state  of  his  opinion  was 
such  as  would  prevent  his  giving  an  unbiased  verdict ;  that,  as  he  had  stated 
it.  the  court  did  not  consider  him  disqualified ;  and  he  was  accordingly  sworn. 
When  this  juror  was  called  to  take  his  seat  upon  the  panel,  after  all  the  other 
jurors  had  been  sworn,  he  stated  to  the  court  that  he  thought  it  inconsistent 
for  him  to  serve  as  a  juror,  holding  the  opinions  he  did,  and  should  prefer 
being  left  off;  that  he  thought  he  could  give  an  unbiased  verdict,  yet  he  had 
a  sympathy  for  the  prisoner  and  his  family,  and  feared  that  his  opinions  in 
relation  to  capital  punishment  might  influence  others  of  the  jury.  The  court 
ruled  that  his  case  did  not  come  within  the  statute,  and  declined  to  excuse 
him."    Commonwealth  v.  Webster,  5  Cush.  (Mass.)  295,  52  Am.  Dec.  711  (ISoO). 

See,  also,  People  v.  Stewart,  7  Cal.  140  (1857) ;  Atkins  v.  Teople,  16  Ark. 
568  (1855). 

"Another  juror,  being  questioned,  said  he  did  not  know  whether  he  had  ex- 
pressed an  opinion  or  not ;  that  from  what  he  had  read  in  the  newspapers 
he  had  received  an  impression  unfavorable  to  the  prisoner,  but  that  he  had 
no  fixed  and  definite  opinion  on  the  subject;  he  should  be  governed  by  the 
evidence.  The  prisoner  objected  to  the  juror  for  cause.  The  counsel  for 
the  government  denied  that  there  was  cause.  Tlie  court  then  asked  the 
juror  if,  in  liis  opinion,  he  had  made  up  his  mind  so  that  he  could  not  give 
the  case  an  imi)artial  hearing.  The  juror  rejiliod  'that  he  must  say  that  his 
prejudices  were  against  the  prisoner.'  The  challenge  for  cause  was  there- 
upon allowed."  Per  curiam,  in  Commonwealth  v.  Knapp,  9  Pick.  (Mass.) 
499  (20  Am.  Rep.  491)  (1880). 

A  iuror  must  have  sufficient  eyesight  to  distinguish  the  faces  of  witnesses. 
Rhodes  v.  State,  128  Ind.  189,  27  N.  B.  »m,  25  Am.  St.  Rep.  429  (1890).  And 
sufficient  hearing.  Mitchell  v.  State,  36  Tex.  Cr.  R.  278,  33  S.  W.  367.  36  S.  W. 
456  (1896).  And  mental  capacity  to  understand  the  testimony  and  to  re- 
member it.  Snowden  v.  State,  7  Baxt.  (Tenn.)  482  (1874).  Compare  State  v. 
Elol,  34  La.  Ann.  1195  (1882). 

In  general,  a  knowledge  of  the  English  language  is  necessary.  State  v. 
Push,  23  La.  Ann.  14  (1871).  But,  where  jurors  so  equipped  are  unobtainable, 
it  has  been  held  that  persons  ignorant  tliereof  were  competent ;  the  testimony 
having  l)een  interpreted  to  them.  In  re  Allison,  13  Colo.  525,  22  Pac.  820,  10 
L.  R.  A.  790,  16  Am.  St.  Rep.  224  (1889). 


224  TRIAL.  (Ch.  12 

BRUNSDEN'S  CASE. 
(Court  of  King's  Bench,  1G35.    Cro.  Car.  438,  448.17) 

Brunsden  was  indicted  for  extortion. 

This  case  was  now  moved  again  by  Keeling,  Jr.;  and  he  insisted 
upon  for  error,  that  neither  justices  of  peace,  nor  justices  of  oyer  and 
terminer  might  enquire,  and  take  traverse,  and  determine  indictments 
the  same  day;  but  justices  in  eyre  and  gaol  deUvery  might,  because 
there  is  warning  given  long  before  of  their  coming,  and  the  offenders 
may  know  what  matters  are  determinable  there;  and  there  is  a  pre- 
cept for  jurors  to  come  out  of  all  parts  of  the  county  to  try  and  de- 
termine oft'ences  before  committed,  whereof  the  prisoners  may  take 
cognizance ;  and  it  is  for  the  speedy  delivery  of  the  prisoners ;  and 
for  this  reason  compared  to  the  proceedings  in  this  court,  which  is  as 
the  general  eyre,  as  27  Assise,  1.  Where  the  proceedings  are  for  of- 
fences committed  in  the  county  of  Middlesex,  this  court  is  as  eyre,  to 
proceed  de  die  in  diem,  and  to  award  venire  facias,  returnable  the  next 
day,  or  at  another  day  after,  according  to  their  appointment,  without 
regard  of  fifteen  days  betwixt  the  teste  and  return ;  but  if  any  indict- 
ments be  removed  out  of  London,  or  out  of  the  sessions  of  the  peace 
in  Middlesex,  by  certiorari,  or  out  of  any  other  county,  where  the  de- 
fendant is  to  plead  here  to  the  issue,  the  usual  course  is  to  award  a 
venire  facias,  and  to  have  fifteen  days  betwixt  the  teste  and  return ; 
a  multo  fortiori  in  the  sessions  of  the  peace,  or  before  justices  of  oyer 
and  terminer.  And  for  this  point,  vide  4  Hen.  V,  "Enquest,"  5.  by 
Hankford;  22  Edw.  IV,  "Coron."  44;  2  Hen.  VHI,  pi.  159,  in  Kello- 
way,  Staunforde,  156. 

All  The  Court  was  of  this  opinion,  that  justices  of  peace  may  not 
enquire,  try,  and  determine  civil  offences  in  one  and  the  same  day ;  for 
the  party  ought  to  have  a  convenient  time  to  provide  for  the  trial. 

*        *        *  18 


REX  V.  HAAS. 
(Supreme  Court  of  Pennsylvania,  17G4.     1  Dall.  9,  1  L.  Bd.  14.) 

Moved  on  the  part  of  the  defendant  to  oblige  the  Attorney  General 
to  bring  on  the  trial,  or  discharge  the  defendant. 

The  Court  said  they  would  not  force  the  crown  to  bring  on  the 
trial,  nor  discharge  the  defendant  from  bail,  without  some  appearance 
of  oppression. 


If  any  person  or  persons  shall  be  committed  for  high  treason  or  fel- 
ony, plainly  and  specially  expressed  in  the  warrant  of  commitment, 
upon  his  prayer  or  petition  in  open  court  the  first  week  of  the  term,  or 

17  Sub  uom.  Bumsted's  Case.  is  Part  of  this  ease  is  omitted 


Ch.  12)  TRIAL.  225 

first  day  of  the  sessions  of  oyer  and  terminer  or  general  gaol  delivery, 
to  be  brought  to  his  trial,  shall  not  be  indicted  some  time  in  the  next 
term,  sessions  of  oyer  and  terminer  or  general  gaol  delivery,  after 
such  commitment;  it  shall  and  may  be  lawful  to  and  for  the  judges 
of  the  Court  of  King's  Bench  and  justices  of  oyer  and  terminer  or 
general  gaol  delivery,  and  they  are  hereby  required,  upon  motion  to 
them  made  in  open  court  the  last  day  of  the  tern;,  sessions  or  gaol  de- 
livery, either  by  the  prisoner  or  any  one  in  his  behalf,  to  set  at  liberty 
the  prisoner  upon  bail,  unless  it  appear  to  the  judges  and  justices  upon 
oath  made,  that  the  witnesses  for  the  king  could  not  be  produced  the 
same  term,  sessions  or  general  gaol  delivery;  (2)  and  if  any  person  or 
persons  committed  as  aforesaid,  upon  his  prayer  or  petition  in  open 
court  the  first  week  of  the  term  or  first  day  of  the  sessions  of  oyer  and 
terminer  and  general  gaol  delivery,  to  be  brought  to  his  trial,  shall 
not  be  indicted  and  tried  the  second  term,  sessions  of  oyer  and  ter- 
miner or  general  gaol  delivery,  after  his  commitment,  or  upon  his  trial 
shall  be  acquitted,  he  shall  be  discharged  from  his  imprisonment. 
St.  31  Car.  II,  c.  2,  VII. 


Ex  parte  STANLEY. 
(Supreme  Court  of  iVevada,  18GS.     4  Nev.  113.) 

Lewis,  J.^^  The  defendant  is  brought  before  this  court  upon  a  writ 
of  habeas  corpus,  and  his  release  claimed  by  counsel  upon  the  grounds : 
First,  that  he  cannot  have  a  speedy  trial  in  the  county  where  he  was 
indicted,  and  where  it  is  claimed  he  has  the  right  to  be  tried,  because 
no  competent  jury  can  be  obtained  there,  and  no  change  of  venue  can 
be  had  upon  the  motion  of  the  prosecution ;  and,  second,  that  the  or- 
der made  by  the  court  postponing  the  trial  indefinitely,  operated  as  a 
release  of  the  prisoner,  and  consequently  the  sheriff  has  now  no  legal 
authority  to  hold  him  in  custody. 

That  all  persons  held  on  a  criminal  charge  have  the  legal  right  to 
demand  a  speedy  and  impartial  trial  by  jury  there  can  at  this  time  be 
no  doubt.  The  right  was  guaranteed  to  the  English  people  by  the 
Great  Charter.  It  has  been  confirmed  in  subsequent  bills  of  right, 
iterated  and  reiterated  by  the  courts,  and  defended  and  protected  by 
the  representatives  of  the  people  with  jealous  care  and  resolute  cour- 
age. In  this  country  the  same  right  is  generally  guaranteed  by  the 
Constitutions  of  the  respective  states,  or  secured  by  appropriate  legis- 
lative enactments.  That  the  defendant'  may  claim  this  right  there  is 
no  doubt.  But  what  is  to  be  understood  by  a  speedy  trial  is  the  em- 
barrassing question  now  to  be  determined.  It  is  very  clear  that  one 
arrested  and  accused  of  crime  has  not  the  right  to  demand  a  trial 

19  Part  of  tbis  case  is  omitted. 
Mik.Ck.Pr.— 15 


226  TRIAL.  (Ch.  12 

immediately  upon  the  accusation  or  arrest  being  made.  He  must  wait 
until  a  regular  term  of  the  court  having  jurisdiction  of  the  offense 
with  which  he  is  charged,  until  an  indictment  is  found  and  presented, 
and  until  the  prosecution  has  had  a  reasonable  time  to  prepare  for 
the  trial. 

Nor  does  a  speedy  trial  mean  a  trial  immediately  upon  the  pres- 
entation of  the  indictment  or  the  arrest  upon  it.  It  simply  means 
that  the  trial  shall  take  place  as  soon  as  possible  after  the  indictment 
is  found,  without  depriving  the  prosecution  of  a  reasonable  time  for 
preparation.  The  law  is  the  embodiment  of  reason  and  good  sense ; 
hence,  whilst  it  secures  to  every  person  accused  of  crime  the  right  to 
have  such  charge  speedily  determined  by  a  competent  jury,  it  does 
not  exact  impossibilities,  extraordinary  efforts,  diligence  or  exertion 
from  the  courts,  or  the  representatives  of  the  state ;  nor  does  it  con- 
template that  the  right  of  a  speedy  trial  which  it  guaranteed  to  the 
prisoner  shall  operate  to  deprive  the  state  of  a  reasonable  opportunity 
of  fairly  prosecuting  criminals. 

Section  582  of  the  criminal  practice  act  indicates  what  is  here  un- 
derstood by  a  speedy  trial.  That  section  declares  that  "if  a  defend- 
ant, indicted  for  a  public  offense,  whose  trial  has  not  been  postponed 
upon  liis  application,  be  not  brought  to  trial  at  the  next  term  of  the 
court  at  which  the  indictment  is  triable  after  the  same  is  found,  the 
court  shall  order  the  indictment  to  be  dismissed,  unless  good  cause 
to  the  contrary  be  shown." 

The  prisoner  here  certainly  cannot  complain  that  the  court  below  has 
not  endeavored,  with  the  utmost  diligence  and  good  faith,  to  give  him. 
a  trial,  but  having  failed  after  repeated  efforts  to  obtain  a  jury,  and 
the  judge  having  expressed  an  opinion  that  a  jury  could  not  be  se- 
cured, the  defendant  considers  himself  entitled  to  be  released.  But 
it  is  not  shown  that  every  possible  means  of  impaneling  a  jury  has 
been  exhausted,  and  that  one  could  not  possibly  be  obtained  in  the 
county.  After  having  made  all  reasonable  efforts  to  give  the  defend- 
ant a  trial,  and  failing  in  it,  I  am  inclined  to  believe  that  the  court 
below  had  the  right  to  continue  the  cause  until  the  next  term,  if  at  such 
term  a  trial  could  probably  be  had.  This  effort  to  give  the  defendant 
a  trial  was  at  the  first  term  after  the  court  below  had  reacquired  ju- 
risdiction of  the  case  by  the  disposition  by  this  court  of  the  appeal, 
which  had  previously  been  taken  in  it. 

Section  318  of  the  criminal  practice  act,  as  amended  in  1867  (Laws 
1867,  p.  127),  confers  upon  the  courts  the  right  to  continue  the  trial  in 
a  criminal  case  upon  a  proper  showing  by  affidavit.  In  a  case  of  this 
kind  an  affidavit  would  be  entirely  unnecessary,  if  the  judge  was  sat- 
isfied that  a  jury  could  not  be  had  at  that  term.  I  see  no  reason  why, 
upon  his  own  knowledge  of  the  fact,  he  could  not  continue  the  case. 
If,  upon  affidavit  of  the  prosecution,  showing  cause,  the  judge  can 
continue  a  case  for  a  term,  why  may  he  not  do  so  upon  his  own  knowl- 
edge of  the  fact  that  a  trial  cannot  be  had  at  that  particular  term? 


Ch.  12)  TuiAL.  227 

There  appears  to  be  no  reason  why  he  may  not  do  so.  If  it  were 
clear  that  a  jury  could  not  be  had  at  the  next  term,  a  continuance  would 
be  useless,  and  the  prisoner  should  perhaps  be  discharged.  But  it 
does  not  follow  that  because  there  was  a  failure  at  one  term  of  couri 
to  obtain  a  jury  that  one  could  not  be  secured  at  the  next  term. 

It  is  very  clear  that  there  were  many  persons  in  the  county  qualified 
to  act  as  jurors,  whose  attendance  the  court  was  not  able  to  secure  at 
the  last  term,  who,  however,  may  be  summoned  for  the  next  term. 
Hence  it  is  not  by  any  means  certain  that  a  jury  cannot  be  impaneled 
at  the  next  term  of  the  court.  I  do  not  hesitate  to  say  that  if  at  the 
next  term  the  court  fails,  after  proper  efforts,  to  obtain  a  jury,  that 
the  defendant  should  be  released.  But  it  seems  to  me  that  he  should 
not  be  discharged  until  every  effort  has  been  exhausted  to  bring  him 
to  trial.  That  the  state  cannot  have  the  case  transferred  to  another 
county  for  trial  is  evidently  an  omission  in  the  law.  It  could  not 
have  been  the  intention  to  deprive  it  of  that  right,  where  a  trial  is 
rendered  impossible  in  the  proper  county.  A  prisoner  charged  with 
a  grave  offense  should,  therefore,  not  be  released  upon  the  ground 
here  taken,  until  all  possible  means  of  securing  a  jury  are  exhausted, 
and  it  is  made  perfectly  certain  that  a  trial  cannot  be  had  within  a 
reasonable  time  in  the  proper  county. 

The  order  made  by  the  court  below,  postponing  the  trial,  was  not 
regular.  But  it  follows,  from  what  has  been  said,  that  the  case  could' 
have  been  continued  for  the  term.  Such  w^as,  perhaps,  the  effect  of 
the  order  made.  A  continuance  for  the  term  would  have  been  more 
regular,  and  the  order  had  better  be  so  modified. 

The  prisoner  is  remanded  to  the  custody  of  the  sheriff  of  Washoe 
county,  to  await  the  action  of  the  district  court.'-" 


CO.ALMOXWEALTH  v.  JAILER  OF  ALLEGHENY  COUNTY. 

(Supreme  Court  of  Pennsylvauia,  1838.     7  Watts,  3GG.) 

Habeas  corpus  for  the  body  of  William  Phillips,  committed  for 
horse  stealing.  The  prisoner  was  indicted  at  May  sessions,  1838,  but 
had  obtained  a  continuance  for  the  absence  of  witnesses.  He  had  been 
brought  up  again  for  trial  at  the  June  sessions,  but  was  found  to  be 
laboring  under  smallpox.  Though  convalescent,  his  aspect  was  so 
loathsome  as  to  spread  a  general  panic ;  and  on  the  testimony  of  the 
physican  of  the  prison  that  he  might  still  communicate  infection,  he 
was  remanded,  though  insisting  on  being  tried.     And  now, 

Mahon  moved  for  his  discharge  under  the  third  section  of  the 
habeas  corpus  act. 

2  0  See.  further,  U.  S.  v.  Fox,  3  Mont.  512  (1880) ;  Ex  parte  .Teflferson,  62 
Miss.  223  (1884) ;   Nixon  v.  State,  10  Miss.  407,  41  Am.  Dec.  UOl  (1&44). 


228  TRIAL.  (Ch.  12 

Irwin,  for  the  Commonwealth,  insisted  that  the  case  was  not  dis- 
tinguishable in  principle  from  Commonwealth  v.  Sheriff  and  Jailer  of 
Allegheny  County,  16  Serg.  &  R.  304. 

Per  Curiam.  There  is  no  doubt  that  necessity,  either  moral  or 
physical,  may  raise  an  available  exception  to  the  letter  of  the  habeas 
corpus  act.  A  court  is  not  bound  to  peril  life  in  an  attempt  to  perform 
what  was  not  intended  to  be  required  of  it.  The  Legislature  intended 
to  prevent  willful  and  oppressive  delay ;  and  it  is  sufficient  that  there 
is 'no  color  for  an  imputation  of  it. 

Prisoner  remanded. 


PEOPLE  v.  BUCKLEY. 

(Supreme  Court  of  California,  1897.     116  Cal.  14G,  47  Pac.  1009.) 

TEMri^E,  J.-^  *  *  *  The  accused  was  not  tried  within  60  days 
after  the  filing  of  the  information.  He  asked  that  the  prosecution 
against  him  be  dismissed  for  this  reason.  His  motion  was  deniedj  and 
the  ruling  is  relied  upon  here  as  error. 

The  Constitution  and  the  laws  alike  guaranty  a  speedy  trial,  and 
section  1382  of  the  Penal  Code  prescribes  that  the  prosecution  shall  be 
dismissed,  unless  good  cause  to  the  contrary  be  shown,  if  a  defend- 
ant whose  trial  has  not  been  postponed  upon  his  application  is  not 
brought  to  trial  within  60  days  after  the  filing  of  the  information. 
The  motion  was  denied  on  three  grounds:  (1)  The  defendant  himself 
applied  for  and  obtained  a  postponement;  (2)  there  was  no  oppor- 
tunity to  try  defendant,  as  the  court  had  been  constantly  occupied; 
and  (3)  a  material  witness  for  the  prosecution  was  absent. 

1.  The  case  was  postponed,  on  the  application  of  defendant,  from 
the  12th  of  February,  1895,  to  the  13th — one  day.  Does  the  postpone- 
ment of  one  day,  on  the  application  of  the  defendant,  deprive  him  en- 
tirely of  the  constitutional  guaranty  of  speedy  trial?  Certainly  not, 
and  any  such  construction  of  the  statute  would  be  vmreasonable. 

2.  In  denying  the  motion,  it  was  stated  by  the  court  that  at  no  time 
since  the  plea  had  there  been  an  opportunity  to  bring  the  case  to  trial 
except  the  12th  day  of  February,  on  which  day  the  defendant  asked 
for  and  obtained  a  continuance  of  one  day,  other  cases  having  in  the 
meantime  occupied  the  attention  of  the  court.  Nothing  is  said  about 
the  nature  of  the  other  cases.  They  are  not  showm  to  have  been  cases 
of  equal  urgency,  and  then  nothing  is  said  of  the  other  11  depart- 
ments of  the  same  court.  In  my  opinion,  the  constitutional  guaranty 
imposes  upon  the  state  the  duty  of  providing  courts  which,  under  ordi- 
nary conditions,  can  furnish  a  speedy  trial.  A  speedy  trial  does  not 
mean  at  once,  but  with  all  convenient  dispatch,  and  implies  courts  in 
which  a  trial  may  be  had.    No  doubt  it  also  implies  reasonable  time  for 

21  Part  of  this  case  is  oruitted. 


Cb.  12)  TRIAL.  229 

the  state  to  provide  courts  and  juries,  and  to  procure  witnesses.  It 
imposes,  however,  a  special  duty  upon  the  state  with  reference  to  sucli 
cases,  and,  if  the  duty  is  not  performed,  the  prosecution  should  be  dis- 
missed. The  Legislature  has  seen  fit  to  lay  down  a  rule  by  which  the 
constitutional  provision  may  be  interpreted,  which  seems  reasonable. 
In  my  opinon,  the  mere  statement  of  the  judge  that  the  court  has  been 
otherwise  engaged  does  not  show  good  cause. 

3.  No  diligence  was  shown  to  procure  the  attendance  of  the  wit- 
ness. Certainly,  the  statement  of  the  witness  that  it  would  be  a  hard- 
ship to  require  him  to  come  from  Sacramento  was  a  poor  excuse  for 
continuing  the  case  33  days,  while  the  defendant  was  in  jail,  and  liable 
to  lose  his  witnesses  by  the  delay.  It  was  not  shown  that  the  services 
of  the  witness  were  at  all  important  to  the  Legislature.  The  benefit  of 
this  constitutional  guaranty  cannot  be  denied  on  such  flimsy  showing. 

Upon  the  showing  made,  I  think  the  motion  to  dismiss  the  prosecu- 
tion should  have  been  granted,  and  the  prosecution  dismissed.  Under 
the  rule  laid  down  in  People  v.  Houston,  107  Cal.  xvii,  40  Pac.  756, 
the  information  must  be  held  good.  The  judgment  and  order  are  le- 
versed. 

Van  Fleet  and  Henshaw,  JJ.,  concur. 

]\IcFarland,  J.  I  concur  in-  the  judgment  of  reversal,  and  in  that 
part  of  the  opinion  of  Mr.  Justice  Temple  which  holds  that  there  is 
no  evidence  in  the  record  sufficient  to  warrant  the  verdict.  I  do  not 
concur  in  that  part  of  said  opinion  which  holds  that  in  this  case  the 
prosecution  should  be  dismissed  because  the  defendant  was  not  tried 
within  60  days  after  the  filing  of  the  information. 

Harrison,  J.  I  concur  in  the  judgment  of  reversal  upon  the  ground, 
as  set  forth  by  Air.  Justice  Temple  in  his  opinion,  that  the  evidence, 
as  shown  by  the  record,  was  insufficient  to  justify  the  verdict.  I  am  of 
the  opinion,  however,  that  the  court  did  not  err  in  refusing  to  dismiss 
the  cause.  The  information  was  filed  December  27,  1894,  and  the  de- 
fendant was  arraigned  January  4th,  and,  having  taken  time  to  plead, 
on  the  11th  of  January  demurred  to  the  information.  Argument  was 
had  upon  this  demurrer  January  18th,  and  on  the  2oth  of  January  the 
court  overruled  the  demurrer,  and  the  defendant  entered  a  plea  of  not 
guilty.  This  was  the  first  point  of  time  after  the  filing  of  the  informa- 
tion at  which  the  defendant  could  be  brought  to  trial,  and  his  trial  was 
had  on  the  18th  of  jMarch.  Whatever  time  was  consumed  by  him  in 
dilatory  motions  or  pleas  which  had  the  effect  to  postpone  the  time 
at  which  he  could  be  larought  to  trial  was  "good  cause  to  the  contrary," 
upon  his  application,  for  the  dismissal  of  the  cause,  under  section  1383 
of  the  Penal  Code.-^ 

22  Garoiitte,  J.,  concurred  in  the  judgment. 

See.  also,  State  v.  Radoicich,  06  ^linn.  294,  00  N.  W.  2.')  (ISOO) :  Ex  parte 
Oaples,  58  Miss.  358  HSSO)  ;   State  v.  Brodie.  7  Wash.  -^42.  35  Pac.  137  (18!)3). 

Under  the  statutes  of  some  states  the  defendant  is  entitled,  if  he  is  not 
tried  within  a  prescribed  time,  to  be  discharged  and  acquitted  of  the  offense 


230  TRIAL.  (Ch.  12 

SECTION  4.— PRESENCE  OF  DEFENDANT,  JUDGE,  COUN- 
SEL AND  WITNESSES 


When  any  felons  appear  in  judgment  to  answer  of  their  felony,  our 
will  is  that  they  come  barefooted,  ungirt,  uncoifed,  and  bareheaded, 
in  their  coat  only,  without  irons  or  any  kind  of  bonds,  so  that  they 
may  not  be  deprived  of  reason  by  pain,  nor  be  constrained  to  answer 
by  force,  but  of  their  own  free  will ;  and  then,  agreeably  to  the  pre- 
sentment against  them,  let  them  be  indicted. 

Britton  (Nichols-Baldwin)  29. 


I  take  it  to  be  a  settled  rule  at  common  law,  that  no  counsel  shall 
be  allowed  a  prisoner,  whether  he  be  a  peer  or  commoner,  upon  the 
general  issue,  on  an  indictment  of  treason  or  felony,  unless  some  point 
of  law  arise  proper  to  be  debated. 

Hawk.  P.  C.  (Curw.  Ed.)  554. 


VAUGHAN'S  CASE. 

(Court  of  Kings  Beuch,  1696.     Holt,  6S9.) 

The  Prisoner  being  brought  to  his  Trial,  and  complaining  of  his 
Irons,  the  Chief  Justice  order'd  them  to  be  knock'd  off,  that  he  might 
stand  at  ease  whilst  he  made  his  Defence;  after  which  he  pleaded  Not 
guilty.    *    *    * 

The  Prisoner  then  desiring,  that  the  W^itnesses  might  be  examined 
apart,  out  of  the  hearing  of  each  other,  the  Court  granted  his  Request 
as  a  Favour,  but  told  him  he  could  not  demand  it  as  his  Right.-^   *   *   * 

charged.  See  Durham  v.  State,  9  Ga.  306  (1S.">1) ;  McGuire  v.  Wallace,  109 
Ind.  284,  10  N.  E.  Ill  (1886).  Under  the  statutes  of  other  states,  he  is  en- 
titled only  to  be  admitted  to  bail.  State  v.  Garthwaite,  23  N.  J.  Law,  143 
(1S51);  In  re  Begerow,  13G  Cal.  293,  68  Pac.  773,  56  L.  R.  A.  528  (1902). 
Subject  to  the  constitutional  and  statutory  right  to  have  a  trial  within  a 
prescribed  time,  the  court  may  fix  the  day  of  trial,  provided  a  reasonable 
time  i.'^  allowed  defendant  to  prepare  his  defense.  Jones  v.  State,  115  Ga.  814, 
42  S.  E.  271  (1902) ;  Dunn  v.  People,  109  111.  635  (1881).  If  defendant  goes  to 
trial  without  objection,  his  right  to  time  to  prepare  is  waived.  Fletcher  v. 
State,  37  Tex.  Cr.  II.  193,  39  S.  W.  116  (1897).  It  is  within  the  sound  discre- 
tion of  the  trial  court  to  grant  or  refuse  a  continuance  before  the  defendant 
lias  been  placed  in  jeopardy.  Commonwealth  v.  Buccieri,  153  Pa.  535,  26  Atl. 
228  (1893). 

2  3  Part  of  this  case  is  omitted. 

Some  courts  hold  it  to  be  discretionary  with  the  court  whether  it  may  refuse 
to  allow  a  witness  disobeying  the  order  to  be  examined  in  the  cause.  Rex 
V.  Colley,  1  Moo.  &  Mallv.  629  (1829) ;    State  v.  Fitzsimmons,  30  Mo.  236  (1860) 

Some  courts  hold  that  where  the  disobedience  of  the  order  was  uninteu- 


Ch.  12)  TRIAL.  231 

REGINA  V.  TANNER. 

(Court  of  Queen's  Beuch,  1707.  2  Ld.  Rayra.  12S4.) 
In  an  information  for  a  riot,  the  defendant  pleaded  not  guilty,  and 
the  cause  being  carried  down  to  Hertford  assizes  in  Lent  1G06-7  [sic], 
verdict  for  the  queen.  And  motion  was  made  to  set  aside  the  verdict : 
First,  because  the  defendant  gave  no  authority  to  the  attorney  to  ap- 
pear before  him.  Secondly,  because  he  was  an  infant  under  eighteen, 
and  ought  to  have  appeared  by  guardian;  and  on  reference  to  the 
master,  it  appeared  there  was  an  authority  to  plead;  and  as  to  the 
second^  the  course  of  the  crown  office  is  for  infants  in  riots,  &c.  to  ap- 
pear by  attorney.  And  so  it  was  ruled,  and  the  court  refused  to  set 
aside  the  verdict.    R.  Raymond  for  the  queen. 


SIR  WILLIAM  WITHIPOLE'S  CASE. 

(Court  of  King's  Beuch,  1G28.  Cro.  Car.  147.) 
The  first  day  of  this  Term  William  Withipole  was  arraigned  upon 
an  indictment  of  murder  found  in  this  vacation  in  Suffolk  before  com- 
missioners of  oyer  et  terminer,  and  certified  hither  by  certiorari ;  and 
upon  his  arraignment  he  desired  to  have  counsel  to  plead  for  him  ore 
tenus,  pretending  he  had  matter  in  law  to  plead. 

But  The  Court  denied  it,  unless  he  would  shew  to  them  some  ex- 
ception in  law,  for  which  they  should  see  cause  to  appoint  him  coun- 
sel; and  then  Mr.  Holborn  should  be  assigned  for  him:  and  The 
Court  said,  any  other  might  be,  though  not  assigned.-*    *    *    * 


JEFFES'  CASE. 

(Court  of  King's  Beucli,  1629.  Cro.  Car.  175.) 
Teffes  was  indicted,  for  that  he  exhibited  an  infamous  libel,  directed 
to  the  king,  against  Sir  Edward  Coke,  late  Chief  Justice  of  the  King's 
Bench  and  against  the  said  court,  for  a  judgment  given  in  the  said 
court  in  the  Case  of  Magdalen  College,  affirming  the  said  judgment 
to  be  treason,  and  calling  him  therein  "traitor,  perjured  judge,"  and 
scandalizing  all  the  professors  of  the  law,  and  containing  much  other 
scandalous  matter;  and  fixed  this  libel  upon  the  great  gate  at  the  en- 
trance of  Westminster  Hall,  and  in  divers  other  public  places. 

tioual.  and  not  brought  about  by  the  party  in  whose  behalf  he  ^is  *«  f  J^^ff- 
is  error  to  exdude  his  testimony.     State  v.  Thonm^.^lll  Ind^  -wo.  13  N^L. 

3.5    60  Am.  Rep.  720  (1887);    Parlcer  v.  State,  6<   Md.  o29,  10  Atl.  _1J,  1  Am. 

St!  Rep.  387  (1887). 

24  Part  of  this  ease  is  omitted. 


232  TRIAL.  (Ch.  12 

And  being  hereupon  arraigned,  he  prayed  that  counsel  might  be 
assigned  him;  which  was  granted,  and  he  had  them,  but  would  not 
be  ruled  to  plead  as  they  advised ;  but  put  in  a  scandalous  plea,  and 
insisting  upon  it,  affirmed  that  he  would  not  plead  otherwise. 

Whereupon  it  was  adjudged,  he  should  be  committed  to  the  marshal, 
and  that  he  should  stand  upon  the  pillory  at  Westminster  and  Cheap- 
side  with  a  paper  mentioning  the  offence,  and  with  such  a  paper  be 
brought  to  all  the  courts  at  Westminster,  and  be  continued  in  prison 
until  he  made  his  submission  in  every  court,  and  that  he  should  be 
bound  with  sureties  to  be  of  good  behaviour  during  his  life,  and  should 
pay  a  thousand  pounds  fine  for  that  offense  to  the  king.^' 


ANONYMOUS. 

(Upper  Bench,   1652.      Style,   3G7.) 

Boynton  moved  for  a  Deer-stealer  that  was  convicted  at  the  Ses- 
sions in  London  upon  an  Endictment  preferred  against  him  upon  the 
late  Act  made  against  stealing  of  Deer,  and  removed  hither  by  a  Ha- 
beas Corpus,  that  the  Return  might  be  filed,  and  took  this  Exception, 
viz.  That  it  appears  not  in  what  Parish  the  offence  was  committed, 
as  it  ought  to  doe. 

Roll,  Chief  Justice.  Here  is  a  conviction  and  a  judgment  in  the 
Case,  and  the  party  is  in  Execution,  and  therefore  bring  your  writ 
of  Error  if  the  judgment  be  erroneous,  for  we  will  not  overthrow  it 
for  a  fault  in  the  return  of  the  Habeas  Corpus.  But  because  it  did 
appear  to  the  Court  that  the  party  was  convicted  behind  his  back,  they 
moved  the  Counsel  to  advise  of  a  way  how  he  may  come  to  a  fair  tryal 
for  the  satisfaction  of  the  party,  and  of  the  people ;  for  it  is  a  hard 
case,  and  let  the  Marshal  take  him  in  the  mean  time,  and  we  will  also 
advise. 


REG.  V.  TEMPLEMAN. 

(Court  of  Queen's  Bench,  1702.     1  Salk.  ,j5.) 

Upon  a  motion  to  submit  to  a  small  fine,  after  a  confession  of  the 
indictment  which  was  for  an  assault.     *     *     *  -® 

Defendants  may  submit  to  a  fine,  though  absent,  if  they  have  a  clerk 

25  "At  the  pre.sent  day  a  prisoner  is  allowed  counsel  to  instruct  him  what 
questions  to  ask,  or  even  to  ask  questions  for  him  with  respect  to  matters  of 
fact,  and  to  cross-examine  the  witnesses  for  the  crown,  and  to  examine  those 
produced  on  the  part  of  the  defendant,  though  not  to  address  the  jury."  1 
Chitty,  Cr.  Law,  408  (1816).  In  the  United  States  the  federal  Constitution 
(Amend,  art.  6)  and  many  state  Constitutions  or  statutes  guarantee  the  right 
of  defendant  to  counsel.  State  v.  Arliu.  39  N.  H.  179  (18.59) ;  State  v.  Moore, 
61  Kan.  732,  GO  Pac.  748  (1900).  This  right  may  be  waived.  Barnes  v. 
Commonwealth,  92  Va.  794,  23  S.  E.  7S4  (1895). 

2  6  Part  of  this  case  is  omitted. 


Ch.  12)  TRIAL.  238 

in  Court  that  will  undertake  for  the  fine.  Hil.  2  Anne,  Hickeringil's 
Case  was,  that  he  and  his  daughter  were  indicted  for  a  trespass,  and 
Hickeringil  only  appeared  on  the  motion  to  submit  to  a  small  fine.  But 
wdiere  a  man  is  to  receive  any  corporal  punishment,  judgment  can- 
not be  given  against  him  in  his  absence,  for  there  is  a  capias  pro  fine ; 
but  no  process  to  take  a  man  and  put  him  on  the  pillory.  Vide  tit. 
Judgments,  Duke's  Case.-'^ 


HOPT  V.  PEOPLE  OF  THE  TERRITORY  OF  UTAH. 

(Supreme  Court  of  the  United  States,  1883.     110  U.  S.  574,  4  Sup.  Ct.  202, 

28  L.  Ed.  262.) 

Harlan,  J.-^  The  plaintiff  in  error  and  one  Emerson  were  jointly 
indicted  in  a  court  of  Utah  for  the  murder,  in  the  first  degree,  of  John 
F.  Turner.  Each  defendant  demanded  a  separate  trial,  and  pleaded 
not  guilty.  Hopt,  being  found  guilty,  was  sentenced  to  suffer  death. 
The  judgment  was  affirmed  by  the  Supreme  Court  of  the  territory. 
But,  upon  writ  of  error  in  this  court,  that  judgment  was  reversed,  and 
the  case  remanded,  with  instructions  to  order  a  new  trial.  104  U.  S. 
631,  26  L.  Ed.  873.  Upon  the  next  trial,  the  defendant  being  found 
guilty,  was  again  sentenced  to  suffer  death.  That  judgment  was  af- 
firmed by  the  Supreme  Court  of  the  territory.  We  are  now  required 
to  determine  whether  the  court  of  original  jurisdiction  in  its  conduct 
of  the  last  trial  committed  any  error  to  the  prejudice  of  the  substantial 
rights  of  the  defendant. 

1,  The  validity  of  the  judgment  is  questioned  upon  the  ground  that 
a  part  of  the  proceedings  in  the  trial  court  were  conducted  in  the  ab- 
sence of  the  defendant.  Cr.  Code  Proc.  Utah,  §  218,  provides  that  "if 
the  indictment  is  for  a  felony  the  defendant  must  be  personally  present 
at  the  trial ;  but  if  for  a  misdemeanor  the  trial  may  be  had  in  the  ab- 
sence of  the  defendant ;  if,  however,  his  presence  is  necessary  for  the 
purpose  of  identification,  the  court  may,  upon  application  of  the  pros- 
ecuting attorney,  by  an  order  or  warrant,  require  the  personal  at- 
tendance of  the  defendant  at  the  trial."  The  same  Code  provides  that 
a  juror  may  be  challenged  by  either  party  for  actual  bias ;  that  is,  "for 
the  existence  of  a  state  of  mind  which  leads  to  a  just  inference  in  ref- 
erence to  the  case  that  he  will  not  act  with  entire  impartiality."  Sec- 
tions 239,  241.  Such  a  challenge,  if  the  facts  be  denied,  must  be  tried 
by  three  impartial  triers,  not  on  the  jury  panel,  and  appointed  by 
the  court.  Section  246.  The  juror  so  challenged  "may  be  examined 
as  a  witness  to  prove  or  disprove  the  challenge,  and  must  answer  every 
question  pertinent  to  the  inquiry."     Section  249.     "Other   witnesses 

27  "This  was,  however,  not  of  course,  but  only  in  the  discretion  of  the 
court."     Rex  v.  Harwood,  2  Str.  1088  (1728). 

28  Part  of  this  case  is  omitted. 


234  TRIAL.  (Ch.  12 

may  also  be  examined  on  either  side,  and  the  rules  of  evidence  appli- 
cable to  the  trial  of  other  issues  govern  the  admission  or  exclusion  of 
evidence  on  the  trial  of  the  challenge."  Section  250.  "On  the  trial 
of  the  challenge  for  actual  bias,  when  the  evidence  is  concluded,  the 
court  must  instruct  the  triers  that  it  is  their  duty  to  find  the  chal- 
lenge true,  if  in  their  opinion  the  evidence  v^arrants  the  conclusion 
that  the  juror  has  such  a  bias  against  the  party  challenging  him  as  to 
render  him  not  impartial,  and  that  if  from  the  evidence  they  believe 
him  free  from  such  bias  they  must  find  the  challenge  not  true;  that 
a  hypothetical  opinion  on  hearsay  or  information  supposed  to  be  true 
is  of  itself  no  evidence  of  bias  sufficient  to  disqualify  a  juror.  The 
court  can  give  no  other  instruction."  Section  252.  "The  triers  must 
thereupon  find  the  challenge  either  true  or  not  true,  and  their  decision 
is  final.    If  they  find  it  true  the  juror  must  be  excluded."    Section  253. 

It  appears  that  six  jurors  were  separately  challenged  by  the  defend- 
ant for  actual  bias.  The  grounds  of  challenge  in  each  case  were  de- 
nied by  the  district  attorney.  For  each  juror  triers  were  appointed, 
who,  being  duly  sworn,  were,  "before  proceeding  to  try  the  challenge," 
instructed  as  required  by  section  252  of  ,the  Criminal  Code;  after 
which,  in  each  case,  the  triers  took  the  juror  from  the  courtroom  into 
a  different  room  and  tried  the  grounds  of  challenge  out  of  the  pres- 
ence as  well  of  the  court  as  of  the  defendant  and  his  counsel.  Their 
findings  were  returned  into  court,  and  the  challenge,  being  found  not 
true,  the  jurors  so  challenged  resumed  their  seats  among  those  sum- 
moned to  try  the  case.  Of  the  six  challenged  for  actual  bias,  four 
were  subsequently  challenged  by  the  defendant  peremptorily.  The 
other  two  were  sworn  as  trial  jurors,  one  of  them,  however,  after  the 
defendant  had  exhausted  all  his  peremptory  challenges.  No  objection 
was  made  to  the  triers  leaving  the  courtroom,  nor  was  any  exception 
taken  thereto  during  the  trial.  The  jurors  proposed  were  examined  by 
the  triers,  without  any  testimony  being  offered  or  produced,  either  by 
the  prosecution  or  the  defense. 

It  is  insisted,  in  behalf  of  the  defendant,  that  the  action  of  the  court 
in  permitting  the  trial  in  his  absence  of  these  challenges  of  jurors  was 
so  irregular  as  to  vitiate  all  the  subsequent  proceedings.  This  point  is 
well  taken.  The  Criminal  Code  of  Utah  does  not  authorize  the  trial  by 
triers  of  grounds  of  challenges  to  be  had  apart  from  the  court,  and  in 
the  absence  of  the  defendant.  The  specific  provision  made  for  the  ex- 
amination of  witnesses  "on  either  side,"  subject  to  the  rules  of  evi- 
dence applicable  to  the  trial  of  other  issues,  shows  that  the  prosecuting 
attorney  and  the  defendant  were  entitled  of  right  to  be  present  during 
the  examination  by  the  triers.  It  certainly  was  not  contemplated  that 
witnesses  should  be  sent  or  brought  before  the  triers  without  the  party 
producing  them  having  the  privilege,  under  the  supervision  of  the  court, 
of  propounding  such  questions  as  would  elicit  the  necessary  facts,  or 
without  an  opportunity  to  the  opposite  side  for  cross-examination. 
These  views  find  some  support  in  the  further  provision  making  it  the 


Ch.  12)  TRIAL.  235 

duty  of  the  court  "when  the  evidence  is  concluded,"  and  before  the 
triers  make  a  finding,  to  instruct  them  as  to  their  duties.  In  the  case 
before  us  the  instructions  to  the  triers  were  given  before  the  latter  pro- 
ceeded with  the  trial  of  the  challenges.  But  all  doubt  upon  the  sub- 
ject is  removed  by  the  express  requirement,  not  that  the  defendant 
may,  but,  wdiere  the  indictment  is  for  a  felony,  must  be,  "personally 
present  at  the  trial." 

The  argument  in  behalf  of  the  government  is  that  the  trial  of  the  in- 
dictment began  after,  and  not  before,  the  jury  was  sworn;  conse- 
quently that  the  defendant's  personal  presence  was  not  required  at  an 
earlier  stage  of  the  proceedings.  Some  warrant,  it  is  supposed  by  coun- 
sel, is  found  for  this  position  in  decisions  construing  particular  statutes 
in  'which  the  word  "trial"  is  used.  Without  stopping  to  distinguish 
those  cases  from  the  one  before  us,  or  to  examine  the  grounds  upon 
which  they  are  placed,  it  is  sufficient  to  say  that  the  purpose  of  the 
foregoing  provisions  of  the  Utah  Criminal  Code  is,  in  prosecutions 
for  felonies,  to  prevent  any  steps  being  taken  in  the  absence  of  the 
accused,  and  after  the  case  is  called  for  trial,  which  involves  his  sub- 
stantial rights.  The  requirement  is  not  that  he  must  be  personally 
present  at^the  trial  by  the  jury,  but  "at  the  trial."  The  Code,  we  have 
seen,  prescribes  grounds  for  challenge  by  either  party  of  jurors  pro- 
posed. And  provision  is  expressly  made  for  the  "trial"  of  such  chal- 
lenges, some  by  the  court,  others  by  triers.  The  prisoner  is  entitled 
to  an  impartial  jury  composed  of  persons  not  disqualified  by  statute, 
and  his  life  or  liberty  may  depend  upon  the  aid  which,  by  his  personal 
presence,  he  may  give  to  counsel  and  to  the  court  and  triers,  in  the 
selection' of  jurors.  The  necessities  of  the  defense  may  not  be  met  by 
the  presence  of  his  counsel  only.  For  every  purpose,  therefore,  in- 
volved in  the  requirement  that  the  defendant  shall  be  personally  present 
at  the  trial,  where  the  indictment  is  for  a  felony,  the  trial  commences 
at  least  from  the  time  when  the  work  of  impaneling  the  jury  begins. 

But  it  is  said  that  the  right  of  the  accused  to  be  present  before  the 
triers  was  waived  by  his  failure  to  object  to  their  retirement  from  the 
courtroom,  or  to  their  trial  of  the  several  challenges  in  his  absence.  We 
are  of  opinion  that  it  was  not  wnthin  the  power  of  the  accused  or  his 
counsel  to  dispense  with  statutory  requirements  as  to  his  personal  pres- 
ence at  the  trial.  The  argument  to  the  contrary  necessarily  proceeds 
upon  the  ground  that  he  alone  is  concerned  as  to  the  mode  by  which  he 
may  be  deprived  of  his  life  or  liberty,  and  that  the  chief  object  of  the 
prosecution  is  to  punish  him  for  the  crime  charged.  But  this  is  a  mis- 
taken view  as  well  of  the  relations  which  the  accused  holds  to  the  pub- 
lic as  of  the  end  of  human  punishment.  The  natural  life,  says  Black- 
stone,  "cannot  legally  be  disposed  of  or  destroyed  by  any  individual,  nei- 
ther iDy  the  person  himself,  nor  by  any  other  of  his  fellow  creatures 
merely  upon  their  own  authority."  1  Bl.  Comm.  133.  The  public  has 
an  interest  in  his  life  and  liberty.    Neither  can  be  lawfully  taken  except 


236  TRIAL.  (Cll.  12 

in  the  mode  prescribed  by  law.  That  which  the  law  makes  essential  in 
proceedings  involving  the  deprivation  of  life  or  liberty  cannot  be  dis- 
pensed with,  or  affected  by  the  consent  of  the  accused,  much  less  by  his 
mere  failure,  when  on  trial  and  in  custody,  to  object  to  unauthorized 
methods.  The  great  end  of  punishment  is  not  the  expiation  or  atone- 
ment of  the  offense  committed,  but  the  prevention  of  future  offenses 
of  the  same  kind.  4  Bl.  Comm.  11.  Such  being  the  relation  which  the 
citizen  holds  to  the  public,  and  the  object  of  punishment  for  public 
wrongs,  the  Legislature  has  deemed  it  essential  to  the  protection  of 
one  whose  life  or  liberty  is  involved  in  a  prosecution  for  felony  that 
he  shall  be  personally  present  at  the  trial;  that  is,  at  every  stage  of 
the  trial  when  his  substantial  rights  may  be  affected  by  the  proceed- 
ings against  him.  If  he  be  deprived  of  his  life  or  liberty  without  be- 
ing so  present,  such  deprivation  would  be  without  that  due  process  of 
law  required  by  the  Constitution.  For  these  reasons  we  are  of  opinion 
that  it  was  error,  which  vitiated  the  verdict  and  judgment,  to  permit 
the  trial  of  the  challenges  to  take  place  in  the  absence  of  the  accused.. 
*    *    * 

Judgment  reversed.-^ 


PRINE  v.  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1851.     18  Pa.  103.) 

This  was  an  indictment  against  John  Prine  and  others,  for  burglary 
and  larceny.  The  record  set  forth  as  follows:  January  16,  1851,  de- 
fendants being  arraigned,  plead  not  guiky,  and  put  themselves  on  their 
country  for  trial,  and  the  Attorney  General  similiter.  January  16, 
1851,  jury  called,  impaneled,  and  sworn,  and  verdict,  "guilty  in  man- 
ner and  form  as  they  stand  indicted."  "Defendants'  counsel  waived 
the  presence  of  the  prisoners,  and,  at  request  of  defendants'  counsel, 
jury  polled,  when  they  severally  answered  that  they  found  the  de- 
fendants guilty  of  the  burglary  of  which  they  stand  charged  in  the 
indictment." 

January  25,  1851.  The  prisoners  were  sentenced  as  stated  on  the 
record. 

It  was,  inter  alia,  assigned  for  error,  that: 

1.  It  does  not  appear  from  the  record  that  the  prisoners  were  pres- 
ent during  the  trial. 

2  9  The  principle  of  this  case  has  been  applied  in  many  jurisdictions  to 
trials  for  felony.  State  v.  Smith,  90  Mo.  37.  1  S.  W.  753,  .59  Am.  Rep.  4 
(1886) ;  People  v.  Beauchamp,  49  Cal.  41  (1874).  The  weight  of  authority, 
however,  allows  the  accused  to  waive  his  right  to  be  present  during  a  trial 
for  felonies  not  capital.  State  v.  Kelly,  97  N.  C  404.  2  S.  E.  185,  2^  Am.  St. 
Rep.  299  (1887) ;  Commonwealth  v.  McCarthy.  163  Mass.  458,  40  N.  E.  76G 
(1895);  Price  v.  State,  36  Miss.  531,  72  Am.  Dec.  195  (1858).  Of.  Lynch  ,v. 
State,  88  Pa.  189,  32  Am.  Rep.  445  (1878). 


Cb.  12)  TRIAL.  237 

2.  The  record  shows  that  the  prisoners  were  not  present  when  the 
verdict  was  rendered  by  the  jury. 

3.  It  does  not  appear  from  the  record  that  the  prisoners  were  in 
court  when  sentence  was  pronounced  upon  them. 

The  opinion  of  the  court  was  dehvered,  October  Gth,  by 
Gibson,  C.  J.  It  is  undoubtedly  error  to  try  a  person  for  felony  in 
his  absence,  even  with  his  consent.  It  would  be  contrary  to  the  dic- 
tates oi  immanity  to  let  him  waive  the  advantage  which  a  view  of  his 
sad  plight  might  give  him  by  inclining  the  hearts  of  the  jurors  to 
listen  to  his  defense  with  indulgence.  Never  has  there  heretofore  been 
a  prisoner  tried  for  felony  in  his  absence.  No  precedent  can  be  found 
in  which  his  presence  is  not  a  postulate  of  every  part  of  the  record. 
He  is  arraigned  at  the  bar;  he  pleads  in  person  at  the  bar;  and  if  he 
is  convicted,  he  is  asked  at  the  bar  what  he  has  to  say  why  judgment 
shall  not  be  pronounced  against  him.  These  things  are  matter  of  sub- 
stance, and  not  peculiar  to  trials  for  murder.  They  belong  to  every 
trial  for  felony  at  the  common  law,  because  the  mitigation  of  the  pun- 
ishment does  not  change  the  character  of  the  crime.  How  could  the 
court  record  them  as  facts,  if  the  truth  were  not  so?  Our  looseness 
in  recording  forms  of  procedure,  especially  in  criminal  cases — if  we 
have  any  forms  left — has  grown  till  the  knowledge  of  the  principles 
of  which  they  were  the  exponents,  has  been  lost  to  the  bench  and  the 
bar.  ^lore  method  sometimes  appears  in  the  record  of  a  justice's  judg- 
ment for  a  few  dollars,  than  appears  in  the  record  of  a  conviction  of 
murder.  These  irregularities  strike  our  professional  neighbors  with 
special  wonder.  They  have  overborne  resistance  by  force  of  num- 
bers ;  but  we  have  not  yielded  to  them  in  the  one  case  capital  by  our 
law.  In  a  conviction  of  murder,  we  have  required  the  substantive 
parts  of  a  proper  record  to  be  set  out  so  clearly  as  to  be  separable 
from  the  dross  with  which  it  is  usually  blended.  This  was  in  favorem 
vitae.  In  other  felonies,  it  is  allowable  to  presume  that  everything  was 
rightly  done  till  the  contrary  appear ;  but  when  it  is  stated  on  the  rec- 
ord positively  that  the  prisoner  was  not  present,  we  cannot  shut  our 
eyes  to  the  fact.  What  authority  had  the  prisoners'  counsel  in  this 
instance,  on  the  pretext  of  convenience,  to  waive  their  presence?  In 
a  criminal  case,  there  is  no  warrant  of  attorney,  actual  or  potential ; 
for  when  a  prisoner  binds  himself  by  an  agreement  which  he  is  com- 
petent to  make,  it  is  entered  on  the  record  as  his  immediate  act.  and 
this  is  a  sufficient  reason  why  he  should  be  in  court  to  do  those  things 
which  his  counsel  could  not  do  for  him.  It  is  unnecessary,  however, 
to  speak  of  delegated  authority;  for  the  right  of  a  prisoner  to  be  pres- 
ent at  his  trial  is  inherent  and  inalienable.  The  record  before  us,  there- 
fore, is  erroneous ;  but  we  direct  that  the  prisoners  be  held  to  answer 
a  fresh  indictment. 
Judgment  reversed. 


238  TRIAL.  (Cb.  12 

ADAMS  V.  STATE. 
(Supreme  Court  of  Florida,  1891.     28  Fla.  511,  10  South.  lOG.) 

Mabry,  J.^"  William  Adams,  the  plaintiff  in  error,  Ike  Spanish 
and  T.  P.  Bethea,  were  jointly  indicted  on  the  26th  day  of  February, 
A.  D.  1891,  at  a  term  of  the  circuit  court  for  Columbia  county,  Fla., 
for  the  murder  of  James  Moore.    *    *     * 

The  bill  of  exceptions  shows  that  an  objection  was  made  by  the 
counsel  for  the  accused  to  the  competency  of  Ike  Spanish  as  a  witness 
for  the  state,  and  pending  the  discussion  of  this  question  before  the 
court  the  jury  was  sent  from  the  courtroom.  The  officers  who  had 
the  custody  of  the  defendant,  Adams,  through  mistake  took  him  also 
from  the  courtroom,  and  carried  him  to  jail.  Counsel  for  the  defend- 
ant then  proceeded  to  discuss  before  the  court  the  competency  of  Ike 
Spanish  as  a  witness,  and  had  proceeded  about  10  minutes  with  the 
discussion  in  the  absence  of  the  prisoner,  when  his  presence  was 
missed.  The  state's  attorney  called  the  attention  of  the  court  to  the 
absence  of  the  prisoner,  and  thereupon  the  court  requested  the  counsel 
for  defendant  to  suspend  his  argument,  which  he  did,  at  the  same  time 
excepting  to  the  removal  of  the  prisoner  from  the  courtroom  without 
his  consent,  and  of  his  being  deprived  of  a  right  guarantied  by  the  Con- 
stitution. 

On  the  return  of  the  prisoner  to  the  courtroom  the  judge  requested 
his  attorney,  in  order  to  save  any  difficulty  that  might  arise  by  reason 
of  the  inadvertence,  to  commence  anew  his  argument,  and  that  the 
court  would  hear  his  views  and  authorities  anew.  Defendant,  by  his 
counsel,  declined  to  say  anvthing  further,  but  insisted  that  his  objec- 
tion to  taking  the  accused  from  the  courtroom  be  noted.  Without  an\' 
argument  further,  either  from  defendant  or  the  state,  the  court  decided 
that  the  witness  was  competent  to  testify  against  the  accused.  It  was 
early  decided  in  this  state,  and  has  been  rigidly  adhered  to  in  later 
decisions,  that  the  prisoner  has  the  right  to  be  and  in  fact  must  be 
present  during  the  trial  of  a  capital  case,  and  no  steps  can  be  taken 
by  the  court  in  his  absence.  Holton  v.  State,  2  Fla.  476,  500 ;  Gladden 
v.  State,  12  Fla.  562;    Irvin  v.  State.  19  Fla.  872. 

There  is  no  doubt  about  the  fact  that  the  accused  here  was  taken 
from  the  courtroom  and  remained  out  for  at  least  10  minutes  during 
the  discussion  of  the  competency  of  a  witness  against  him.  He  has 
the  right  to  be  present  and  to  hear  questions  of  law  as  well  as  ques- 
tions of  fact  discussed,  and  in  fact  no  steps  can  be  taken  in  the  case 
in  his  absence.  The  court  must  see  in  capital  cases  that  the  accused  is 
present  before  any  proceedings  are  taken  in  the  case.  The  fact  that 
the  court  directed  the  argument  to  be  gone  over  again  could  not  pos- 

3  0  Part  of  this  case  is  omitted. 


Cli.  12)  TUiAL.  239 

sibly  restore  the  accused  to  the  position  of  hearing  what  had  already 
been  said  in  his  absence.    *    *    * 

For  the  errors  herein  pointed  out  the  judgment  in  this  case  must  be 
reversed,  and  a  new  trial  awarded.^ ^ 


PEOPLE  V.  THORN. 

(Court  of  Appeals  of  New  York,  1898.     156  N.  Y.  286.  50  N.  E.  047,  42  L.  It. 

A.  368.) 

I-lAiGiiT,  J.^-  *  *  *  At  the  conclusion  of  the  evidence  taken  up- 
on the  trial,  the  defendant's  counsel  requested  the  court  to  permit  the 
jury  to  inspect  the  premises  where  the  homicide  was  committed.  The 
district  attorney  objected;  and  the  court  at  first  refused  the  request, 
but  later,  upon  the  request  of  the  defendant's  counsel,  changed  his  rul- 
ing, and  made  an  order  for  the  inspection  of  the  premises,  first  m- 
structing  the  jury  that  "you  are  not,  going  from  the  courthouse  there, 
while  there,  or  returning,  to  converse  among  yourselves,  or  with  any 
one  else,  touching  any  subject  relating  to  this  case;  and,  in  addition, 
I  admonish  you  that  you  are  not  to  form  or  express  any  opinion  upon 
anv  subject  connected  with  the  case;  and  I  admonish  the  oflicers  that 
they  are  not  to  converse  with  the  jurors,  or  suffer  anybody  to  converse 
with  them,  on  any  matter  relating  to  this  case."  An  officer  was  then 
sworn,  in  accordance  with  the  provisions  of  the  Code,  and  the  jurors 
were  conducted  to  the  premises.  The  defendant's  counsel  waived  the 
rio-ht  of  the  defendant  and  of  himself  to  go  with  the  jury  to  the  prem- 
ises, and  requested  that  the  jury  go  without  them.  The  inspection  of 
the  premises  was  then  made  in  the  absence  of  the  defendant. 

It  is  now  contended  that  the  inspection  was  a  part  of  the  trial,  and 
the  taking  of  evidence  in  defendant's  absence,  and  that  it  was  such  an 
error  as  to  necessitate  the  granting  of  a  new  trial.  This  question  has 
already  received  attention  in  the  courts  of  a  number  of  our  sister 
states  "and  in  some  of  the  lower  courts  of  our  own  state.  The  conclu- 
sions 'reached  bv  the  courts  of  the  different  states  are  far  from  uni- 
form In  some  it  is  held  that  a  view  of  the  premises  where  a  crime 
has  been  committed  is  a  part  of  the  trial,  and  is  the  taking  of  evidence, 
and  that  it  cannot  be  done  in  the  absence  of  the  defendant.  In  other 
states  it  has  been  held  to  be  no  part  of  the  trial,  and  not  the  talcing  of 
evidence,  within  the  meaning  of  the  Constitution  or  of  the  P.ill  of 
Rights. 

31  In  cases  of  felony  it  bas  been  held  that  <l^f<^"*]=;!;VVrV^^NlMlS71?)' 
the  impaneling  of  the  .iury  (Dougherty  v.  ^'<>"i"^^"^:^*^f^t    ;^,fP    44    Viil    '  •  l" 

ur?  RoSs  V.  S,  111  ind.  340.  12  N.  IV^^^l.^'f;:;"!.;;!  ^^  Tl'T^  1^.11  d 
the  verdict  (Summers  v.  State   5  Tex.  App,3(.j   32  A.n.  Kep.  .,^.  [1^^ 
when  sentence  is  given  (French  v.  State,  8o  Wis.  400,  oo  ^.  W.  abb,  -1  l^  it. 
A.  402,  39  Am.  St.  Rep.  855  [3  893]). 
3  2  I'art  of  this  case  is  omitted. 


240  TRIAL.  (Ch.  12 

The  argument  presented  in  the  cases  holding  that  a  view  of  the 
premises  is  improper  without  the  presence  of  the  defendant  is  to  the 
effect  that  the  view  of  the  jurors  cannot  be  considered  an  idle  cere- 
mony, but  must  be  deemed  to  have  been  made  for  a  purpose,  and,  tak- 
ing place  under  an  order  of  the  court,  is  a  part  of  the  trial ;  that  the 
jurors,  in  making  such  inspection,  necessarily  made  use  of  their  sense 
of  sight,  and,  although  no  word  may  be  spoken,  they  draw  conclusions 
from  the  silent,  inanimate  objects  which  they  see;  that  these  objects 
are  mute  witnesses  with  which  the  defendant  must  be  confronted. 
This  view  was  adopted  in  elaborate  opinions  by  Justices  Learned  and 
Bockes,  in  the  General  Term,  Third  Department,  in  the  case  of  People 
V.  Palmer,  43  Hun,  401. 

In  the  case  of  People  v.  Bush,  G8  Cal.  623,  630,  10  Pac.  169,  the 
same  view  was  adopted,  but  by  a  divided  court. 

In  the  case  of  State  v.  Bertin,  34  La.  Ann.  46,  it  was  held  that  an 
examination  of  the  premises  where  the  crime  was  committed  could 
not  properly  take  place  in  the  absence  of  the  judge  and  the  defend- 
ant ;  but  in  that  state  there  was  no  statute  authorizing  a  view  of  the 
premises. 

In  the  case  of  Benton  v.  State,  30  Ark.  328,  350,  it  was  held  that 
the  accused  should  be  permitted  to  be  present  at  the  view. 

In  the  case  of  Foster  v.  State,  70  Miss.  755,  763,  12  South.  822,  the 
jurors  were  permitted  to  visit  and  inspect  a  railway  car  in  which  the 
homicide  occurred.  The  right  of  the  accused  was  first  denied  him  by 
the  court,  but,  as  an  act  of  grace  on  the  part  of  the  counsel  for  the 
state,  the  court  gave  the  accused  permission  to  accompany  the  jury. 
It  was  held  that  the  judge  erred;  that  the  accused  had  a  right  to  be 
present ;  and  that  it  was  not  a  matter  of  favor. 

In  the  case  of  Rutherford  v.  Com.,  78  Ky.  639,  the  court  held  that, 
in  a  trial  for  homicide,  the  prisoner  and  the  judge  should  attend  the 
inspection  of  the  premises  by  the  jury,  but,  it  not  appearing  that  the 
defendant  was  prejudiced  by  the  inspection,  the  court  refused  to  re- 
verse the  judgment. 

In  the  case  of  Sasse  v.  State,  68  Wis.  530,  537,  32  N.  W.  849,  it 
was  held  that  the  knov/ledge  acquired  by  the  jury  in  inspecting  the 
premises  was  to  enable  the  jurors  better  to  understand  the  evidence 
on  the  trial ;  that  it  was  not  to  obtain  original  testimony  in  addition  to. 
or  contradiction  of,  or  independent  of,  the  evidence  given  in  court,  but 
to  obtain  a  more  perfect  knowledge  of  the  evidence,  and  to  enable  the 
jury  better  to  understand  and  consider  it,  in  the  light  and  by  the  aid 
of  the  insensible  objects  and  localities  disclosed  by  the  view. 

In  the  case  of  Carroll  v.  State,  5  Neb.  31,  it  was  held  that,  when- 
ever the  court  makes  an  order  that  the  jury  view  the  place  where  a 
crime  has  been  committed,  such  view  should  be  made  in  the  presence 
of  the  prisoner,  unless  he  waives  the  privilege. 

In  Shular  v.  State,  105  Ind.  289,  4  N.  E.  870,  55  Am.  Rep.  211,  the 
court,  on  motion  of  the  defendant's  counsel,  sent  the  jury  to  inspect 


Ch.  12)  TRIAL.  241 

the  premises  where  the  homicide  was  committed,  and  did  not  direct 
that  the  defendant  should  be  present  during-  the  inspection ;  but  no  re- 
quest was  made  by  the  defendant  that  he  should  be  allowed  to  be  pres- 
ent, nor  was  there  a  suggestion  to  the  court  that  he  desired  to  accom- 
pany the  jury.  The  statute  in  that  state  permitted  the  inspection  of 
the  premises  only  upon  the  consent  of  the  parties.  This  consent  was 
given  in  open  court,  and  the  inspection  took  place  in  the  absence  of 
the  defendant.  Upon  review  it  was  contended  that  the  inspection  was 
a  part  of  the  trial,  and  was  the  taking  of  testimony. 

Elliott,  J.,  in  delivering  the  opinion  of  the  court,  says:  "This  stat- 
ute does  not  intend  that  the  view  of  the  premises  where  a  crime  was 
committed  shall  be  deemed  part  of  the  evidence,  but  intends  that  the 
view  may  be  had  for  the  purpose  of  enabling  the  jury  to  understand 
and  apply  the  evidence  placed  before  it  in  the  presence  of  the  accused 
in  open  court.  Deferring  for  the  present  a  consideration  of  the  author- 
ities, and  reasoning  on  practice,  we  shall  have  no  difficulty  in  conclud- 
ing that  the  statute  does  not  intend  that  the  inspection  of  a  place  where 
a  crime  was  committed  shall  be  taken  as  evidence.  It  cannot  be  seri- 
ously doubted  that  evidence  can  only  be  delivered  to  a  jury  in  a  crim- 
inal case  in  open  court,  and,  unless  there  is  a  judge  or  judges  present, 
there  can  be  no  court.  The  statute  does  not  intend  that  the  judge  shall 
accompany  the  jury  on  a  tour  of  inspection.  This  is  so  obvious  that 
discussion  could  not  make  it  more  plain.  The  jury,  are  not,  the  stat- 
ute commands,  to  be  spoken  to  by  any  one  save  by  the  officer  and  the 
person  appointed  by  the  court,  and  they  are  forbidden  to  talk  upon 
the  subject  of  the  trial.  It  is  the  duty  of  the  jurors  to  view  the  prem- 
ises, not  to  receive  evidence,  and  nothing  could  be  done  by  the  defend- 
ant, or  by  his  counsel,  if  they  were  present;  so  their  presence  could 
not  benefit  him  in  any  way,  nor  their  absence  prejudice  him.  The  stat- 
ute expressly  provides  who  shall  accompany  the  jury,  and  this  express 
provision  implies  that  all  others  shall  be  excluded  from  that  right  or 
privilege.  It  is  quite  clear  from  these  considerations  that  the  statute 
does  not  intend  that  the  defendant  or  the  judge  shall  accompany  the 
jury,  and  it  is  equally  clear  that  the  view  obtained  by  the  jury  is  not 
to  be  deemed  evidence."     *     *     * 

If,  as  is  contended,  the  view  of  the  premises  by  the  jurors  is  a  part 
of  the  trial,  or  is  the  taking  of  testimony  upon  the  trial,  it  may  be  that 
the  view  could  not  take  place  in  the  absence  of  the  defendant ;  but  we 
are  not  prepared  to  concede  that  the  view  is  a  part  of  the  trial  or  is 
the  taking  of  evidence.  The  trial  could  not  take  place  in  the  absence 
of  the  judge,  jury,  and  defendant,  and  yet  the  provision  of  the  Code 
does  not  require  the  judge  to  attend  upon  the  jury  during  the  time 
that  it  is  inspecting  the  premises.  Courts  are  appointed  to  be  held  at 
the  places  designated  by  statute.  In  this  case  it  was  at  the  courthouse 
of  the  county.  Courts  may  be  adjourned  to  be  held  in  other  places 
if  a  malignant,  contagious,  or  epidemic  disease  exists  at  the  place 
Mik.Cr.Pb.— 16 


242  TRIAL.  (Ch.  12 

where  the  term  of  a  court  of  record  is  appointed  to  be  held;  but 
nothing  has  occurred  in  this  case  necessitating-  the  transfer  of  the  trial 
from  the  courthouse  to  a  cottage  in  Woodside.  It  therefore  seems 
clear  that  the  Legislature  never  contemplated  that  the  view  of  the 
jurors  provided  for  should  be  in  court  and  a  part  of  the  trial. 

Is  it  the  taking  of  evidence?  The  provision  in  the  Bill  of  Rights 
that  the  accused  shall  be  confronted  with  the  witnesses  against  him 
was  designed  to  prevent  secret  trials  in  which  the  accused  was  often 
arrested  and  executed  without  a  hearing,  and  without  any  knowledge 
as  to  who  were  his  accusers,  or  the  evidence  upon  which  they  relied. 
The  provision  had  reference  to  the  persons  who  should  testify  against 
him.  It  is  doubtless  true,  as  claimed,  that  jurors  may  draw  inferences 
from  the  objects  which  come  under  their  vision.  While  mute,  inani- 
mate objects  may,  in  one  sense,  be  witnesses,  are  they  witnesses  within 
the  contemplation  of  the  Constitution  and  the  statute?  We  think  not. 
If  seeing  the  locality  is  the  taking  of  evidence  in  one  case,  it  must  be 
in  another.  If  viewing  the  locality  during  the  trial  is  the  taking  of  tes- 
timony, why  is  not  the  seeing  of  the  locality  before  the  trial  the  taking 
of  testimony  ? 

It  often  occurs  that  crimes  are  committed  in  public  places,  familiar 
to  the  greater  portion  of  the  inhabitants  of  a  county,  where  it  would 
be  difficult,  if  not  impossible,  to  procure  a  jury  which  had  not  seen 
the  locality  time  and  time  again.  Such  persons,  having  seen  the  local- 
ity, and  being  familiar  with  it,  could,  if  they  were  sitting  upon  a  jury, 
readily  determine  whether  a  witness  was  accurately  describing  the 
place.  Their  knowledge  of  the  locality  would  constantly  operate  up- 
on their  minds  during  the  trial  in  determining  the  force  and  effect 
which  should  be  given  to  the  testimony.  If  seeing  is  the  taking  of  ev- 
idence, it  would  follow  in  every  case  that  a  juror  who  had  seen  and 
was  familiar  with  the  locality  would  be  incompetent  to  sit  as  a  juror, 
for  he  would  have  taken  testimony  in  the  absence  of  the  accused,  with 
which  he  had  never  been  confronted,  or  had  an  opportunity  to  ex- 
plain. To  illustrate  further:  In  front  of  this  Capitol,  in  the  city  of 
Albany,  there  is  a  park.  On  the  opposite  side  of  the  park  stands  the 
courthouse.  Should  a  felony  be  committed  in  the  park,  the  accused 
could  not  well  be  brought  to  trial,  for  the  reason  that  every  juror  sum- 
moned in  the  case  necessarily  would  see  and  view  the  locality  every 
time  he  entered  or  departed  from  the  courthouse. 

These  are  some  of  the  absurd  results  which  would  naturally  follow 
the  construction  contended  for.  Our  minds  do  not  incline  that  way. 
Every  reasonable  safeguard  provided  by  the  Constitution  or  the  Bill  of 
Rights  for  the  protection  of  persons  accused  of  crime  should  be  scrupu- 
lously recognized  and  preserved  by  the  courts ;  but  we  should  not 
attempt  to  deprive  the  jury  of  the  means  of  determining  the  truth  or 
falsity  of  the  testimony  of  witnesses,  or  to  so  surround  criminal  trials 
with  technical  and  profitless  restrictions  as  to  make  it  difficult,  if  not 
impossible,  to  reach  a  verdict  that  can  be  upheld.     It  appears  to  us 


Cb.  12)  TRIAL.  243 

that  the  more  rational  and  reasonable  construction  to  be  given  to  the 
provisions  of  the  section  is  that  the  view  is  not  the  taking  of  testimony 
within  the  meaning  of  the  Bill  of  Rights ;  but  that  the  sole  purpose 
and  object  of  the  view  is  to  enable  the  jurors  to  more  accurately  un- 
derstand and  more  fully  appreciate  the  testimony  of  witnesses  given 
before  them.  The  wise  and  beneficent  object  of  the  statute  should  not 
be  lost  sight  of. 

Trial  judges  should  l)e  careful  to  see  that  the  purpose  of  the  statute 
is  not  departed  from,  and  the  view  used  for  other  purposes  than  that 
contemplated.  The  statute  has  left  it  discretionary  with  the  trial  judge 
as  to  whether  the  view  should  be  had.  In  exercising  this  discretion, 
we  think  that  he  should  first  satisfy  himself  that  the  premises  are  in 
substantially  the  same  condition  as  at  the  time  of  the  commission  of 
the  crime  under  investigation,  and  that  the  view  should  be  taken  by 
the  jury  attended  only  by  the  officers  or  persons  selected  by  the  court 
to  exhibit  the  premises.  If  the  defendant  and  his  counsel  and  the  dis- 
trict attorney  wish  to  accompany  the  jury,  we  think  it  but  reasonable 
that  they  should  be  permitted  to  do  so;  but  the  jurors  should  be  care- 
fully guarded,  and  no  one  permitted  to  speak  to  them,  in  violation  of 
the  provisions  of  section  412,  or  other  misconduct  permitted.  If  the 
jurors  be  permitted  to  converse  with  outside  persons  with  reference 
to  the  particulars  of  the  crime,  or  should  make  inquiries  with  reference 
to  material  questions  at  issue,  it  would  be  misconduct,  within  the  Gallo 
Case,  supra,  which  this  court  would  feel  bound  to  consider  upon  a  re- 
view. 

As  we  have  seen,  the  prisoner's  counsel  asked  that  the  jurors  be  per- 
mitted to  view  the  premises,  and  waived  the  right  of  himself  or  the 
defendant  to  be  present.  If  the  view  was  not  a  part  of  the  trial,  or 
the  taking  of  evidence,  within  the  contemplation  of  the  Constitution 
and  the  statute,  there  can  be  no  doubt  about  the  power  of  the  defendant 
to  waive  his  presence.  People  v.  Johnson,  110  N.  Y.  131,  17  N.  E. 
G81;  People  v.  Court  of  Oyer  and  Terminer.  101  N.  Y.  245,  4  N.  E. 
259,  54  Am.  Rep.  691.  Whether  he  could  waive  the  right  to  be  pres- 
ent if  it  were  a  part  of  the  trial  and  the  taking  of  evidence,  we  need 
not  now  consider.    *    '''    * 

Parker.  C.  J.,  and  Gray,  Martin,  and  Vaxn\  JJ.,  concur  with 
Haigiit.  J.,  for  affirmance.  BartlETT,  J.,  concurs  with  O'Brien,  J., 
for  reversal. 

Judgment  and  conviction  affirmed. ^^ 

3  3  "While  there  is  some  conflict  of  authority  upon  Ihe  question,  there  is 
a  great  preponderance  in  favor  of  the  proposition  tliat.  under  sucli  jirovisions, 
the  absence  of  the  accused  at  the  hearinjr  and  decision  of  a  motion  for  a 
change  of  venue,  or  continuance  of  the  case,  at  tlie  liearing  and  decision  on 
motion  in  arrest  of  .iudgment.  or  at  tlie  liearing  and  decision  of  a  demurrer  to 
the  indictment,  will  not  vitiate  tlie  .i"«lgiiient  in  a  case  of  felon.v ;  that 
it  is  not  essential  that  the  accused  should  be  i)resent  at  the  liling  and  trial  of 
motions  and  pleas  not  involving  the  question  of  guilt  or  innocence  on  the 
merits."    Baskiu,  J.,  in  State  v.  Woolsey,  19  Utah,  491,  57  Pac.  42S  (1899J. 


244  TRIAL.  (Ch.  12 

PEOPLE  V.  BLACKMAN. 

(Supreme  Court  of  California,  1899.     127  Cal.  24S,  59  Pac.  573.) 

Pkr  Curiam. ^^  Defendant  was  convicted  of  a  felony.  Upon  the 
hearing  of  the  motion  of  defendant  for  a  new  trial  two  affidavits  were 
read  in  its  support,  made  by  two  different  persons,  who  were  present 
at  the  trial.  In  substance,  they  deposed  that,  after  the  court  had  in- 
structed the  jury,  and  while  the  district  attorney  was  addressing  the 
jury,  the  presiding  judge  left  the  bench  and  the  courtroom,  and  went 
into  another  room,  closed  the  door  behind  him,  and  was  absent  from 
the  courtroom  about  10  minutes,  during  which  time  the  district  at- 
torney proceeded  with  his  argument  to  the  jury  upon  the  facts  of  the 
case.  No  affidavit  disputing  these  facts  or  explaining  the  absence  of 
the  judge  was  made  by  any  one.  Defendant's  affidavits  were  filed 
with  the  notice  of  motion  for  a  new  trial,  and  when  the  motion  came 
on  to  be  heard,  and  the  affidavits  were  read,  the  court  made  the  fol- 
lowing remark:  "What!  What!  The  court  knows  of  its  own  knowl- 
edge that  it  was  not  absent  any  such  time,  or  in  any  such  manner, 
and  was  not  out  of  hearing  of  counsel  while  arguing  said  cause  at  any 
time,  and  that  the  door  of  my  chamber  was  open  at  that  time,  and  even 
when  the  door  is  shut  I  can  hear  all  that  is  going  on  in  the  courtroom." 

The  Attorney  General  cites  Southern  California  Motor-Road  Co.  v. 
San  Bernardino  Nat.  Bank,  100  Cal.  316,  34  Pac.  711,  in  which  the 
court  quotes  from  a  Nevada  case  "that  in  all  motions  before  a  judge 
during  the  progress  of  the  trial  he  may  act  on  his  own  knowledge  in 
regard  to  things  which,  in  their  nature,  are  better  known  to  himself 
than  they  could  be  to  others."  The  motion  in  both  these  cases  was  for 
transfer  of  the  place  of  trial  upon  the  ground  that  the  judge  was  in- 
terested in  the  cause,  and  in  the  case  in  100  Cal.  316,  34  Pac.  711,  the 
affidavit  was  not  to  the  fact  that  the  judge  was  disqualified  by  reason 
of  interest  (giving  the  disqualifying  facts),  but  it  was  that,  as  affiant 
was  informed  and  believed,  the  judge  had  said  he  considered  himself 
disqualified.  It  has  been  held  here  recently  that  a  motion  to  transfer 
a  cause  on  the  ground  of  the  bias  of  the  judge  must  be  decided  on 
affidavits  (People  v.  Compton,  123  Cal.  403,  56  Pac.  44),  so  that  the 
above  rule  does  not  apply  in  that  kind  of  a  case ;  nor  do  we  think  it 
would  apply  where  the  facts  as  shown  clearly  disqualify  the  judge  as 
interested  in  the  cause  of  action.  The  judge's  belief  cannot  overcome 
the  legal  conclusion  to  be  drawn  from  the  facts. 

The  Attorney  General  also  claims  that  the  statement  of  the  judge 
from  the  bench  must  be  received  as  a  refutation  of  the  facts  set  forth 
in  the  affidavits.  We  are  not  called  upon  to  decide  whether  the  state- 
ment of  the  court  is  to  be  received  as  the  equivalent  of  an  affidavit 
in  all  cases,  or  whether  the  rule  in  the  case  of  People  v.  Compton, 

3  5  Tart  of  the  opinion  is  omitted. 


Ch.  12)  TRIAL.  245 

supra,  applies,  as  is  claimed  by  defendant.  The  facts  stated  in  the  af- 
fidavits were  not,  in  their  nature,  better  known  to  the  judge  than  to 
others  in  the  courtroom — the  sheriff,  the  clerk,  counsel,  and  bystand- 
ers. If  the  statements  were  untrue,  the  fact  could  have  been  easily 
so  shown  by  affidavit.  But  the  statement  of  the  judge,  treated  as  an 
affidavit,  and  given  its  full  eff'ect  as  such,  does  not  controvert  the  af- 
fidavits presented  with  the  motion  in  all  their  essential  facts.  In  People 
V.  Tupper,  122  Cal.  424,  55  Pac.  125,  68  Am.  St.  Rep.  44,  the  court 
said:  "The  judge  is  a  component  part  of  the  court.  There  can  be  no 
court  without  the  judge.  And  all  that  was  done  in  the  absence  of 
the  judge  was  done  in  the  absence  of  the  court.  A  defendant  convicted 
under  such  circumstances  has  been  deprived  of  his  liberty  without  due 
process  of  law."  In  State  v.  Beuerman,  59  Kan.  586,  53  Pac.  874, 
cited  in  the  above  case,  it  was  said:  "He  [the  judge]  cannot  even 
temporarily  reHnquish  control  of  the  court  or  the  conduct  of  the  trial. 

*  *  *  It  is  especially  important  that  he  should  be  visibly  present 
every  moment  of  the  actual  progress  of  a  criminal  trial,  where  the  high- 
est penalty  of  the  law  may  be  imposed.  *  *  *  If  the  presiding 
judge  abandons  the  trial,  or  relinquishes  control  over  the  proceedings, 
the  accused  has  good  cause  to  complain" — citing  numerous  cases. 

Admitting  all  the  judge  said  to  be  true,  there  is  not  in  the  state- 
ment sufficient  to  disprove  the  fact.  Indeed,  it  inferentially  concedes 
that  he  relinquished  control  of  the  case  for  the  time.  Something  more 
is  required  of  the  presiding  judge  than  that  he  should  be  within  hear- 
ing. That  might  be  true  if  he  were  on  the  street,  and  the  windows 
of  the  courtroom  open ;  and  it  may  be  true  in  this  case,  as  the  judge 
stated,  that  when  in  the  adjoining  room,  with  the  doors  shut,  he  "can 
hear  all  that  is  going  on  in  the  courtroom,"  but  it  must  be  obvious 
that  he  would  be  in  no  position  to  have  control  of  the  proceedings,  and 
certainly  would  not  be  presiding  in  the  cause  when  in  an  adjoining 
room,  with  the  door  open  or  shut.  If  any  misconduct  took  place  in 
the  courtroom  during  such  absence,  there  would  be  no  judge  present 
to  whom  defendant's  counsel  could  make  complaint,  or  to  determine 
what  occurred  in  his  absence.  Upon  the  authority  of  People  v.  Tup- 
per we  must  hold  the  conduct  of  the  judge  to  be  prejudicial  error. 

*  *    =1= 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial. 


ROWE  v.  PEOPLE. 

(Supreme  Court  of  Colorado,  1899.    26  Colo.  542,  59  Pac.  .'T.) 

GoDDARD,  J.^'     *     *     *     The  third  and  last  ground  relied  on  for 
reversal  is  that  the  trial  judge  absented  himself  from  the  courtroom 

3  7  Part  of  the  case  is  omitted. 

"The  inclination  of  the  courts  has  been  to  hold  that,  when  it  is  neoessiiry 
for  the  conduct  of  the  trial  that  one  should  act  as  judge,  he  may  uot  be 


246  TUiAL.  (Ch.  12 

during  the  closing  argument  of  the  district  attorney,  and  that  during 
such  absence  the  district  attorney  used  improper  language  in  address- 
ing the  jury.  The  language  that  is  alleged  to  have  been  improper  is 
not  preserved  in  the  bill  of  exceptions.  We  are  unable,  therefore,  to 
determine  whether  this  objection  is  meritorious  or  not. 

The  alleged  absence  of  the  judge  from  the  courtroom  consisted  in 
his  leaving  the  bench,  and  going  into  his  room,  which  was  but  a  few 
feet  away,  and  is  explained  by  the  judge  himself,  in  passing  upon  the 
motion  for  new  trial,  as  follows :  "I  will  say,  in  regard  to  that  part 
of  the  argument  of  the  district  attorney  of  which  complaint  is  made 
by  counsel  for  defendants,  that  while  I  stepped  into  my  room  here 
a  few  feet,  stepping  but  a  few  feet  away  from  my  desk  here,  at  the 
time  counsel  for  the  defendants  interposed  an  objection  to  the  remarks 
of  the  district  attorney,  that,  aside  from  calling  my  attention  to  the 
statements  made  by  Mr.  Patton,  he  made  no  further  reference  to  it, 
and  did  not  except  to  the  argument  as  made  by  the  district  attorney. 
*  =:=  *  fi^Q  discussion  by  the  district  attorney  of  the  evidence  in 
this  case  was  perfectly  fair.  I  heard  every  word  spoken  by  him.  No 
reference  was  made  to  the  fact  that  the  defendants  were  not  placed 
upon  the  stand  to  testify.  *  *  *  Consequently,  I  will  say  there  is 
no  justification  for  the  sixth  assignment  of  error  in  this  case." 

From  this  statement  of  the  court,  it  is  obvious  that,  if  counsel  had 
taken  the  proper  steps  to  present  this  objection,  there  is  no  foundation 
for  this  assignment  of  error.  The  absence  of  the  judge  from  the 
bench  was  not  such  as  would  constitute  reversible  error.  O'Brien  v. 
People,  17  Colo.  561,  31  Pac.  230.  Upon  a  careful  inspection  of  the 
record  before  us,  we  are  unable  to  find  any  error  that  would  justify  a 
reversal. 

The  judgments  of  the  court  below  are  accordingly  affirmed. 


SECTION  5.— CONDUCT  OF  THE  TRIAE 


STATE  V.  WILCOX. 

(Supreme  Court  of  North  Caroliua,  1902.     131  N.  C.  707,  42  S.  E.  5.36.) 

Montgomery,  J.  "No  person  ought  to  be  taken  or  disseised  of  his 
freehold,  liberties  or  privileges,  or  outlawed  or  exiled,  or  in  any  man- 
ner deprived  of  his  life,  liberty  or  property  but  by  the  law  of  the  land." 

called  from  the  bench  to  be  examined  as  a  witness ;  but  wlien  his  action  as  a 
judge  is  not  required,  because  there  is  a  sufficient  court  without  him,  he  may 
become  a  witness,  tliough  it  is  then  decent  that  he  do  not  return  to  the  bench." 
Folger,  ,T.,  in  People  v.  Dohring,  .59  N.  Y.  379.  17  Am.  Rep.  349  (1874). 

See,  also.  Hacker's  Case,  Kelyng,  12  (IGGO) ;  Hinman  v.  People,  13  Huu 
(N.  Y.)  266  (1878). 


o<7 

Cb.  12)  TRIAL. 

And  that  provision  of  our  state  Constitution  applies  as  well  to  the 
procedure  and  manner  of  trial  in  our  courts  of  justice  as  it  does  to 
the  great  principles  of  law  which  underlie  our  society.    ^"^^^  ^^^/^^^^ 
of  the  land,  all  persons  charged  with  crime  are  as  much  entitled  to  a 
?ai    and  unprejt  diced  trial  as  they  are  to  the  protection  of  their  per- 
ons   their  property,  or  their  reputation.    They  have  the  right,  under 
he  same  Constitution,  to  have  counsel  for  their  defense;  and  any  will- 
ful   nterruption  of  such  counsel  while  conducting  such  defense,  in- 
ended  to  disconcert  and  embarrass,  is  not  only  unlawful  as  obstruct- 
ing and  preventing  a  fair  trial,  but  is  deserving  of  the  condemnation 

of  all  srood  citizens.  .    ,.  ^ 

In  this  case  the  prisotier  was  arraigned  on  an  nidictnient  for  mui- 
de    a nd  was  convicted  of  that  crime  in  the  first  degree     Ihe  evdence 
was  entirely  circumstantial,  and,  while  that  character  of  evidence  may 
Tn    ts  very  nature,  produce  a  high  degree  of  moral  ccrtamty  nt  tts 
roolication,  yet  it  is  never  to  be  forgotten  that  it  requires  the  greatest 
de'ree  of    aution  and  vigilance  in  its  application.    In  reading  the  rec- 
ord in  this  ease,  it  hardly  seems  possible  that  the  jury  <=^  f  ha«  give 
that  cautious  and  vigilant  attention  to  the  evidence  which  the   aw  re 
JuTred  of  °1    nl  or  to  the  presentation  of  the  prisoner's  case  to  them  by 
hs  counsel  that  thought  which  the  importance  of  the  case  demanded, 
?i  the  r   mmediate  presence  100  people,  in  their  deliberate  purpose  to 
p  e  udice  the  rights  of  the  prisoner,  committed  a  great  wrong  agains 
rhrcommonwealth,  and  a  contempt  of  the  court.     O"    '«  -  ^^^^  ° 
the  courthouse  greater  improprieties  took  place  for  the  puipose  ot 
nreiuScing Te  prisoner  with  the  jury.    No  such  demonstrations  were 
Ter  witnessed  in  our  state  before,  and,  for  the  honor  of  the  common- 
wealth, such  ought  never  to  be  repeated. 

In  the  statement  ot  the  case  by  his  honor  he  ^'"<'\.;^'';,  ',;"'„ 
deuce  was  all  in  and  while  one  of  the  counsel  was  making  the  dosing 
a  g   Jnt  forlhe  prisoner,  about  one  hundred  people,  being  abo«    a 

f™,rtb  of  those  present  in  the  courtroom,  as  if  by  conceit,  left  the 
fourth  °*  ™se  pre  e.  t  ^^^^^^^^  ^^^^  addressing  the 

ir  a  fi^ealal  was  given  near  the  courthouse,  which  caused  a  num- 
br'if  other  persons  to  leave  the  courtroom.  The  court  is  o  o,rimom 
and  so  finds  the  fact,  that  these  demonstrations  were  made  to    tie 

purpose  of  ^^^^^  ^^^f  ::::z:^:i^Z:  "i: 

rlttrn^Llt thi  Pritir  t^o  set  aside  the  verdict  in  consequence 

°'|ufficie°m  "xuse  was  made  here  by  the  counsel  for  .he  prisoner 
for  he  fa  lure  to  make  the  motion  for  a  new  trial  in  the  court  below 
to  iitifv  1  Attorney  General  in  consenting  to  an  agreement  o  coi  - 
:r:j  motion  as  >^aving  been  en^^^^^^^  ^vli.ch  lie 

did.  In  such  a  case  as  th  s  it  wa  ""t  ''  P  ,  „duct  of  the 
^o^.r;rrr  i'e'-^^ir   TrdlLdeny  proceedings  as- 


248  TRIAL.  (Ch.  12 

sumed  such  proportions  as  to  warrant  this  court  in  declaring  that  the 
trial  was  not  conducted  according  to  the  law  of  the  land.  The  pro- 
priety of  our  ruling  is  strengthened  by  the  circumstances  that  con- 
tempt proceedings  were  not  commenced  against  those  offending,  and 
that  no  motion  was  made  to  set  the  verdict  aside  and  for  a  new  trial 
after  such  unheard  of  demonstrations. 

The  counsel  for  the  prisoner,  in  his  argument  here,  in  response  to 
a  question  stated  that,  if  the  verdict  had  been  set  aside,  the  prisoner 
would  have  met  a  violent  death  on  the  instant.  The  prisoner  must  not 
only  be  tried  according  to  the  forms  of  law,  these  forms  being  in- 
cluded in  the  expression  "the  law  of  the  land,"  but  his  trial  must  be 
unattended  by  such  influences  and  such  demonstrations  of  lawlessness 
and  intimidation  as  were  present  on  the  former  occasion.  The  courts 
must  stand  for  civilization,  for  the  proper  administration  of  the  law  in 
orderly  proceedings.    There  must  be  a  new  trial  of  this  case. 

New  trial. 

Clark,  J.  (concurring).  The  judge  having  found  as  a  fact  that  the 
demonstrations  within  and  without  the  courtroom  were  made  "for  the 
purpose  of  breaking  the  force  of  the  counsel's  argument,"  the  magni- 
tude and  nature  of  those  demonstrations  were  such  as  to  require  a 
new  trial.  The  administration  of  justice  must  not  only  be  fair  and 
unbiased,  but  it  must  be  above  any  just  suspicion  of  any  influence,  save 
that  credit  which  the  jury  shall  give  to  the  evidence  before  them.  It 
is  of  vital  importance  to  the  public  welfare  that  the  decisions  of  courts 
of  justice  shall  command  respect,  but  this  will  be  impossible  if  there  is 
ground  to  believe  that  extraneous  influence  of  any  kind  whatever  has 
been  brouerht  to  bear. 


PEOPLE  V.  MURRAY. 

(Supreme  Court  of  Micbigaiv,  1891.     89  ilich.  276,  50  N.  W.  995,  14  L.  R.  A. 
809,  28  Am.  St.  Rep.  294.) 

Champun,  C.  J.  *  *  *  The  first  clause  of  section  28  of  ar- 
ticle 6  of  the  Constitution  reads  as  follows :  "In  every  criminal  prose- 
cution the  accused  shall  have  the  right  to  a  speedy  and  public  trial  by 
an  impartial  jury."  The  right  to  a  public  trial  is  one  of  the  most  im- 
portant safeguards  in  the  prosecution  of  persons  accused  of  crime. 

In  this  case  it  is  apparent  that  the  constitutional  rights  of  Murray 
were  violated  in  the  order  of  the  court  to  the  police  officer  stationed 
at  the  door  of  the  courtroom  "that  he  should  stand  at  the  door,  and 
see  that  the  room  is  not  overcrowded,  but  that  all  respectable  citizens 
be  admitted  and  have  an  opportunity  to  get  in  whenever  they  shall 
apply."  It  is  shown  beyond  question  that  during  the  whole  trial  the 
courtroom  was  not  overcrowded,  nor  were  the  seats  provided  for  spec- 
tators  occupied  to  any  great  extent.     This  officer  was  under  the  con- 


Ch.  12)  TuiAL.  249 

trol  of  the  court,  and  when  the  court  was  informed  that  he  was  ex- 
cluding citizens  and  taxpayers  he  refused  to  take  any  notice  of  tlie 
complaint,  and  left  the  officer  to  exercise  his  discretion  as  to  what  re- 
spectable citizens  he  should  admit. 

Is  respectability  of  the  citizen  who  desires  to  witness  a  trial  to  be 
made  a  test  of  the  right  of  access  to  a  public  trial,  and  is  that  test  to 
be  left  to  the  knowledge  or  discretion  of  a  police  officer?  Must  a  citi- 
zen who  wishes  to  witness  a  trial  of  a  person  accused,  whether  he  be 
a  friend,  an  acquaintance,  or  a  stranger  to  the  accused,  present  to  the 
police  officer  stationed  at  the  door  of  the  Temple  of  Justice  a  certifi- 
cate of  his  respectabihty?  If  so,  by  whom  shall  it  be  certified?  By 
the  mayor,  the  chief  of  police,  or  police  commissioners,  or  by  his  pastor 
or  clergyman?  Neither  the  Constitution  nor  the  law  requires  any  such 
preposterous  condition  to  the  admission  of  a  citizen  to  attend  and  wit- 
ness a  trial,  either  civil  or  criminal. 

The  order  of  the  court  stationing  the  policeman  at  the  door,  with 
directions  to  admit  none  but  respectable  citizens,  was  not  only  a  viola- 
tion of  the  Constitution,  but  it  was  a  direct  violation  of  the  public 
statutes  of  this  state.  Section  7244  of  Howell's  Annotated  Statutes 
enacts :  "The  sittings  of  every  court  within  this  state  shall  be  public, 
and  every  citizen  may  freely  attend  the  same."  This  statute  has  been 
in  force  since  1846.  It  voices  the  sentiment  of  the  people  at  the  time 
the  Constitution  of  1850  was  adopted.  It  gives  expression  to  what  is 
there  meant  by  a  public  trial.  Courts  have  no  dispensing  power  when 
the  Legislature  has  spoken.  The  judge  who  presided  at  the  trial  of 
this  case  was  as  much  bound  by  this  provision  of  law  as  the  humblest 
citizen.  The  trial  may  have  been  an  impartial  one;  the  respondent 
may  have  been  justly  convicted  ;  but  it  still  remains  that  it  was  ac- 
complished in  violation  of  his  constitutional  and  statutory  right  to  a 
public  trial. 

Edmund  Burke  never  expressed  a  more  important  truth,  when 
speaking  respecting  the  suspension  of  habeas  corpus  at  the  time  of  the 
American  Revolution,  than  when  he  said :  "It  is  the  obnoxious  and  sus- 
pected who  want  the  protection  of  the  law."  Courts  of  final  resort 
cannot  consider  the  question  whether  the  respondent  was  justly  con- 
victed or  not  in  passing  upon  questions  of  law  presented  for  their  con- 
sideration. It  is  for  the  protection  of  all  persons  accused  of  crime — 
the  innocently  accused  that  they  may  not  become  the  victim  of  an  un- 
just prosecution,  as  well  as  the  guilty,  that  they  may  be  awarded  a 
fair  trial— that  one  rule  must  be  observed  and  applied  to  all.  *  *  * 
Three  authorities  are  cited  in  support  of  the  action  of  the  judge. 
One  is  the  case  of  State  v.  Brooks,  92  Mo.  573,  5  S.  W.  257,  330.  In 
that  case  in  the  opinion  handed  down  by  the  Supreme  Court  it  was 
said  that  an  objection  was  taken  that  the  defendant  did  not  have  a 
public  trial,  and  the  court  said :  "This  claim  was  based  on  the  fact  that 
during  the  early  stages  of  impaneling  the  jury  two  men  were  stationed. 
on  the  afternoon  of  one  day  and  the  forenoon  of  the  next  day,  at  the 


250  TRIAL.  (Ch.  12 

door  of  the  courtroom,  who  refused  to  admit  any  one  into  the  court- 
room except  jurors,  witnesses,  or  officers  of  the  court,  or  those  having- 
business  in  court.  It  appears  that,  when  this  matter  was  brought  to 
the  attention  of  the  court,  the  court  stated  that  no  order  had  been 
made  stationing  men  at  said  door,  and  announced  that  any  one  who 
wished  to  come  into  the  courtroom  could  do  so,  and  made  an  order 
that  all  persons  be  admitted  until  the  seats  were  full.  Had  the  court 
either  refused  to  make  such  an  order,  or  if,  after  making  it,  had  re- 
fused a  request  on  the  part  of  the  defendant  that  jurors  examined 
touching  their  qualifications  while  the  men  were  stationed  at  the  door 
should  be  re-examined,  this  might  have  afforded  some  ground  for  the 
complaint  made;   but  no  such  request  was  made." 

This  is  not  in  any  respect  a  parallel  case  to  the  one  under  consid- 
eration. In  the  Brooks  Case  the  exclusion  of  the  public  only  continued 
through  the  afternoon  of  one  day  and  the  forenoon  of  the  next.  In 
Murray's  Case  it  lasted  during  the  entire  trial  of  two  weeks.  In  the 
Brooks  Case,  when  the  matter  was  called  to  the  attention  of  the  court, 
the  court  stated  that  no  order  had  been  made  stationing  a  man  at  the 
door,  and  announced  that  any  one  who  wished  to  come  into  the  court- 
room could  do  so,  and  made  an  order  that  all  persons  be  admitted  un- 
til the  seats  were  filled.  In  Murray's  Case  the  court  made  the  order 
stationing  the  policeman  at  the  door  to  see  that  all  respectable  citizens 
be  admitted ;  that  his  attention  was  called  to  the  fact  that  respectable 
citizens  and  taxpayers  were  refused  admission,  and,  instead  of  making 
an  order  that  all  citizens  be  admitted  until  the  room  was  filled,  he  said 
that  "the  officer  has  got  his  orders,  and  they  are  in  accordance  with 
the  law,  as  I  take  it,  and  if  you  have  any  objection  you  will  have  to 
take  it  in  some  other  way  than  by  exception.  Proceed  with  the  trial." 
The  judge's  position  in  Murray's  Case  finds  no  support  whatever  in 
the  Brooks  Case. 

We  are  also  cited  to  the  case  of  People  v.  Kerrigan,  73  Cal.  223,  l-t 
Pac.  849.  In  that  case  the  defendant  was  convicted  of  an  assault  with 
intent  to  commit  murder.  The  defenses  interposed  at  the  trial  were. 
"not  guilty,"  and  "insanity."  During  the  progress  of  the  trial  in  the 
court  below  the  defendant  became  greatly  excited,  and  indulged  in  pro- 
fane and  abusive  language,  addressed  to  the  court  and  other  officers 
of  the  court.  Her  conduct  created  so  much  commotion  among  the 
spectators  that  the  trial  was  seriously  interrupted,  and  the  court  found 
it  necessary  to  make  an  order  excluding  spectators  from  the  court- 
room. *  *  *  Neither  is  this  case  an  authority  for  what  was  done 
in  Murray's  Case.  The  court  did  not  order  the  courtroom  to  be  cleared 
of  spectators,  but  the  lobby  outside.  There  is  nothing  in  the  facts  of 
that  case  which  assimilate  in  any  degree  to  the  trial  of  IMurray.  Here 
no  violence  is  shown,  no  disorderly  conduct,  no  violent  or  disgraceful 
action  on  the  part  of  Murray,  which  tended  to  lessen  the  dignity  of 
the  court,  or  bring  the  administration  of  justice  into  disrepute. 

I  cannot  accede  to  the  correctness  of  the  proposition  intimated  in 


Ch.  12)  TUiAL.  251 

that  case  that,  if  a  public  trial  has  not  been  accorded  to  the  accused, 
the  burden  is  upon  him  to  show  that  actual  injury  has  been  suffered 
by  a  deprivation  of  his  constitutional  right.  On  the  contrary,  when  he 
shows  that  his  constitutional  right  has  been  violated,  the  law  conclu- 
sively presumes  that  he  has  suffered  an  actual  injury.  I  g^o  further, 
and  say  that  the  whole  body  politic  suffers  an  actual  injury  when  a 
constitutional  safeguard  erected  to  protect  the  rights  of  citizens  has 
been  violated  in  the  person  of  the  humblest  or  meanest  citizen  of  the 
state.  Tlie  Constitution  does  not  stop  to  inquire  of  what  the  person 
has  been  accused  or  what  crime  he  has  perpetrated ;  but  it  accords  to 
all,  without  question,  a  fair,  impartial,  and  public  trial.     *     *     * 

It  is  also  urged  that  in  this  case  the  prisoner  was  accorded  a  public 
trial,  for  the  reason  that  there  were  several  other  ways  of  obtaining 
ingress  to  the  courtroom  than  that  in  which  the  public  generally  en- 
tered. The  learned  judge  returns  to  the  writ  of  certiorari  "that  there 
were  several  doors  for  ingress  and  egress  accessible  to  persons  wish- 
ing to  visit  the  said  court  at  all  times."  But  this  is  a  mere  subterfuge. 
There  was  a  public  entrance,  at  which  the  public  applied  for  admission 
and  were  refused,  as  is  shown  by  the  affidavits,  or  one  of  them,  that 
one  of  the  persons,  knowing  of  the  private  entrance  through  the  clerk's 
office,  entered  in  that  manner,  after  being  refused  admission  at  the 
public  entrance.  It  is  not  usual  for  the  public  to  pass  through  these 
]M-ivate  entrances  into  the  courtroom,  and  it  is  no  answer  for  the  court 
to  say  that,  although  he  stationed  a  policeman  at  the  door  of  the  pub- 
lic entrance,  there  were  other  ways  of  ingress  to  persons  who  wished 
to  gain  admission.  We  have  no  hesitation  in  saying  that  the  prisoner 
was  denied  the  right  of  a  public  trial,  and  the  proceedings  in  conse- 
quence must  be  declared  a  mistrial,  and  his  conviction  must  be  set 
aside,  and  a  new  trial  must  be  had. 

We  are  asked  to  discharge  the  prisoner,  on  the  ground  that  he  has 
been  once  in  jeopardy,  and  cannot,  therefore,  be  tried  again.  The 
question  is  a  serious  one,  and  we  have  considered  it  with  care.  The 
judgment  and  conviction  are  set  aside  in  this  case  on  a  proceeding 
instituted  by  the  prisoner,  and  is  to  be  treated  as  if  the  judgment  had 
been  arrested  on  his  own  motion,  and  the  judgment  and  verdict  set 
aside.  In  such  cases  the  plea  of  former  jeopardy  cannot  avail.  State 
V.  Hays,  2  Lea  (Tenn.)  156  ;  State  v.  Walters,  16  La.  Ann.  400  ;  State 
V.  Redman,  17  Iowa,  329 ;  People  v.  Casborus,  13  Johns.  (N.  Y.)  3.-il ; 
State  v.  Norvell,  2  Yerg.  (Tenn.)  24,  24  Am.  Dec.  458;  Com.  v.  Hat- 
ton,  3  Grat.  (Va.)  623;  State  v.  Clark,  69  Iowa.  196,  28  X.  W.  537  : 
Gerard  v.  People,  3  Scam.  (111.)  362;  People  v.  Barric,  49  Cal.  3-}2  : 
People  V.  Olwell,  28  Cal.  456  ;  Morrisette  v.  State,  77  Ala.  71 ;  People 
v.  Helbing,  61  Cal.  620  ;  Johnson  v.  State,  29  Ark.  31,  21  Am.  Rep. 
157;  People  v.  White,  68  I^Iich.  648,  37  N.  W.  34 ;  People  v.  Price, 
74  ^lich.  37,  44,  41  N.  W.  853  ;   Bish.  Crim.  Law.  §§  1004,  1016. 

In  Hill  V.  People,  above  referred  to,  one  of  the  jury  who  convicted 
the  prisoner  was  an  alien,  and  therefore  disqualified,  and  it  was  held 


252  TRIAL.  (Ch.  12 

that  his  conviction  was  a  violation  of  section  28,  art.  6,  of  the  Consti- 
tution. The  respondent  in  that  case  moved  for  a  new  trial  upon  that 
ground.    This  court  in  reversing  the  judgment  ordered  a  new  trial. 

The  judgment  must  be  reversed,  the  prisoner  must  be  remanded  to 
the  custody  of  the  sheriff  for  the  county  of  Wayne,  and  a  new  trial  is 
ordered. 

Morse,  Long,  and  McGrath,  JJ.,  concurred  with  Champlin,  C.  J. 

Grant,  J.  I  concur  with  my  Brother  Champun  in  his  opinion  that 
the  respondent  was  not  accorded  a  public  trial  within  the  meaning  of 
the  Constitution  and  the  laws  of  this  state,  but  I  cannot  concur  with 
him  in  holding  that  the  writ  of  certiorari  was  the  proper  way  to  bring 
the  case  to  this  court.    *    *    *  ss 


STATE  v.  NYHUS. 

(Supreme  Court  of  North  Dakota,  1909.  124  N.  W.  71.) 
Morgan,  C.  J.^"  *  *  *  'p|^g  ^j-j^l  court,  after  a  jury  had  been' 
impaneled  and  sworn,  made  the  following  orders :  "On  motion  of  the 
state's  attorney,  it  is  ordered,  in  view  of  the  nature  of  this  case,  it  be- 
ing what  is  commonly  known  as  scandalous  matter,  that  all  persons  be 
excluded  from  the  room  save  and  except  the  following  named  persons : 
All  jurors,  officers  of  the  court,  including  attorneys,  litigants,  and  their 
attorneys,  witnesses  for  both  parties,  and  any  other  person  or  per- 
sons whom  the  several  parties  to  the  action  may  request  to  remain." 
The  court  had  previously  made  an  order  excluding  all  witnesses  from 
the  courtroom  until  after  they  had  been  examined,  except  the  witnesses 
for  the  defendant,  who  were  permitted  to  be  present  during  the  pro- 
gress of  the  state's  case.  The  statement  of  the  case  shows  that  there 
was  no  objection  to  the  order  limiting  the  attendance  of  persons  that 
were  permitted  to  be  present  in  the  courtroom.  It  also  appears  in  gen- 
eral terms  "that  the  order  was  carried  into  effect  and  enforced"  until 
the  commencement  of  the  arguments  to  the  jury  at  the  close  of  the 
testimony.  The  statement  of  the  case  also  contains  the  following  re- 
cital :  "During  the  course  of  the  trial  several  members  of  the  bar  were 
present  from  time  to  time,  and  one  other  person  not  included  in  the 
above  order  was  also  present  part  of  the  time  by  special  invitation  of 
the  presiding  judge." 

The  defendant  contends  that,  by  the  making  and  enforcement  of  the 
above  order,  he  was  deprived  of  his  constitutional  right  to  a  public 
trial.  It  is  noticeable  from  a  reading  of  the  record,  as  above  recited, 
that  it  does  not  appear  that  any  person  was  excluded  from  or  refused 
admittance  to  the  courtroom  who  was  within  the  terms  of  the  order 
that  was  made,  nor  does  it  appear  from  the  record  that  any  one  was 

38  Part  of  the  opinions  of  Champlin,  C.  J.,  and  Grant,  J.,  are  omitted. 
3  9  Part  of  this  case  is  omitted. 


Ch.  12)  TRIAL.  253 

refused  admission  to  the  courtroom  except  by  an  inference  from  the 
statement  in  the  record  that  the  order  was  enforced.  It  is  not  shown 
in  any  manner  how  many  persons  were  admitted  under  the  order,  or 
how  many  were  in  attendance  upon  the  trial,  what  was  the  seating 
capacity  of  the  courtroom,  and  whether  the  seats  were  filled  and  the 
courtroom  crowded  or  otherwise,  does  not  appear.  It  does  not  appear 
how  many  jurors  were  in  attendance  at  said  term,  nor  how  many  wit- 
nesses, nor  how  many  attorneys,  nor  how  many  litigants.  It  is  not 
shown  whether  the  defendant  requested  any  one  to  be  present,  nor  is 
it  shown  that  he  desired  any  one  to  be  present,  nor  is  it  shown  that 
any  one  was  refused  admittance,  coming  within  any  of  the  classes  of 
persons  that  w^ere  permitted  to  attend.  Xo  restrictions  were  placed 
upon  the  number  of  persons  that  were  permitted  to  remain  at  the  re- 
cjuest  of  the  defendant. 

It  is  contended  in  the  argument  that  the  order  only  permitted  the 
defendant  to  make  a  request  that  certain  persons  who  were  present  in 
the  courtroom  when  the  order  was  made  might  remain  upon  his  re- 
quest ;  in  other  words,  it  is  contended  that  he  was  not  permitted  to  re- 
quest the  attendance  of  any  person  at  any  later  session  after  the  mak- 
ing of  the  order.  We  do  not  think  this  to  be  a  reasonable  construc- 
tion of  the  order.  We  think  it  was  the  intention  of  the  trial  court  to 
permit  the  defendant  to  request  any  person  to  attend  during  the  whole 
trial,  and  remain  during  any  sitting  of  the  court,  and  to  be  admitted  at 
all  sessions  if  his  presence  was  desired  and  requested  by  the  defendant. 

In  view  of  the  meager  showing  as  to  attendance  at  the  trial  under 
the  restrictions  of  the  order,  we  cannot  say,  nor  intimate,  that  the  trial 
was  not  public  within  the  meaning  of  the  constitutional  provision.  If 
every  one  attended  that  the  defendant  desired  to  have  present  and  all 
others  attended  that  could  have  attended  under  the  provisions  of  the 
order,  we  cannot  say  that  the  trial  was  not  public.  Every  one  who 
had  business  or  duties  in  the  courtroom,  and  every  one  that  the  de- 
fendant or  state's  attorney  might  request  to  be  present,  was  permitted 
to  be  present.  There  is  no  contention  nor  room  for  contention  that 
the  order  did  not  give  the  defendant  the  same  privileges  that  were  ac- 
corded the  state's  representative.  There  was  no  favoritism  shown  to 
the  state  nor  to  the  defendant.  It  is  not  shown  that  any  one  was  ex- 
cluded by  reason  of  the  order,  except  by  inference,  as  above  stated. 

The  Constitution  of  this  state  guarantees  to  all  persons  accused  of 
crime  a  a  speedy  and  public  trial.  These  provisions  are  for  the  bene- 
fit of  the  accused.  They  were  enacted  to  forever  make  it  impossible 
for  public  prosecutors  or  courts  to  continue  the  evils  of  secret  trials 
as  they  formerly  existed.  These  prohibitions  or  guaranties  are  con- 
strued generally  to  have  been  enacted  to  prevent  secret  trials,  and 
public  trials  in  the  literal  sense  of  those  words  have  never  been  con- 
strued to  be  granted  by  these  provisions.  It  is  never  contended  that 
the  state  is  burdened  by  these  provisions  with  the  duty  of  providing 
courtrooms  of  sufficient  capacity  to  accommodate  every  one  who  may 


254  TRIAL.  (Ch.  12 

wish  to  be  present  at  trials.  These  provisions  are  held  to  be  subject 
to  a  reasonable  construction,  and  circumstances  may  arise  where  cer- 
tain portions  of  the  public  may  be  excluded  without  impairing  the  de- 
fendant's rights  under  these  provisions.  For  instance,  it  is  conceded 
by  text-writers  and  courts  generally  that  persons  of  immature  years 
may  be  excluded  from  the  courtroom  during  the  trial  where  the  evi- 
dence relates  to  scandalous,  indecent,  or  immoral  matters.  Further- 
more, the  courtroom  may  be  cleared  to  prevent  interference  with,  or 
obstruction  of,  the  due  administration  of  justice. 

The  orderly  conduct  of  the  courts  in  the  administration  of  justice  is 
deemed  to  warrant  the  exclusion  of  the  public  from  trials  where  those 
present  conduct  themselves  in  a  manner  tending  to  obstruct  justice, 
or  tending  to  give  either  the  state  or  the  defendant  an  imfair  trial.  It 
is  deemed  better  to  limit  the  right  to  a  public  trial  than  that  the  trial 
may  be  conducted  in  such  a  manner  by  reason  of  those  present  that 
the  rights  of  the  parties  may  be  prejudiced.  Grimmett  v.  State,  22 
Tex.  App.  36,  2  S.  W.  631,  58  Am.  Rep.  630;  State  v.  Hensley,  75 
Ohio  St.  255,  79  N.  E.  462,  9  L.  R.  A.  (N.  S.)  277,  116  Am.  St.  Rep. 
734;  Lide  v.  State,  133  Ala.  43,  31  South.  953.     *     ^     ^^ 

In  State  v.  Hensley,  75  Ohio  St.  255,  79  N.  E.  462,  9  L.  R.  A.  (N. 
S.)  277,  116  Am.  St.  Rep.  734,  supra,  the  court  in  declaring  an  order 
excluding  all  persons,  except  the  jury,  defendant's  counsel,  members 
of  the  bar,  newspaper  men,  and  one  other  person  who  was  a  witness 
for  the  defendant,  said :  "Perhaps,  too,  the  character  known  as  the 
'courtroom  loafer'  whose  attendance  would  be  induced  only  by  prurient 
curiosity,  might  be  excluded  without  harm  to  the  defendant,  or  preju- 
dice to  the  state,  although  the  matter  of  determining  with  certainty 
just  who  should  and  who  should  not  be  included  in  this  category  in 
the  given  instance,  might  not  always  be  easy  of  solution,  but  should  be, 
and,  we  think,  necessarily  and  properly,  left  to  the  trial  judge,  who  is 
obliged  to  insist  upon  the  orderly  conduct  of  public  business,  and 
whose  highest  duty  is  securing  to  the  parties,  the  defendant  as  well  as 
the  state,  a  fair  and  impartial  trial ;  but  the  people  have  a  right  to 
know  what  is  being  done  in  their  courts,  and  free  observation  and  the 
utmost  freedom  of  discussion  of  the  proceedings  of  public  tribunals 
that  is  consistent  with  truth  and  decency  tends  to  public  welfare."  The 
court,  however,  held  that  the  order  in  that  case  was  too  restrictive, 
and  deprived  the  defendant  of  his  constitutional  right.  It  is  to  be  ob- 
served, however,  that  the  order  in  that  case  was  much  more  restrictive 
than  the  one  under  consideration. *°     *     *     * 

40  The  judgment  was  reversed  on  other  grounds. 


Cll.  12)  TRIAL.  255 

PEEPLES  V.  STATE. 

(Supreme  Court  of  Georgia,  1898.     103  Ga.  629.  29  S.  E.  091.) 

Lumpkin,  P,  J.*^  *  *  *  Jj^  ruling-  upon  certain  questions  aris- 
ing during  the  trial,  the  judge  made  remarks  which  were  objectionable, 
and  calculated  to  prejudice  the  case  of  the  accused.  We  will  call  at- 
tention to  two  of  these : 

The  accused  having  moved  for  a  continuance  on  the  ground  of  an 
absent  witness,  viz.  his  son,  Drew  Peeples,  and  having  sworn  that  this 
witness  was  not  absent  with  his  knowledge  or  by  his  procurement  or 
consent,  the  judge,  in  the  presence  of  those  from  w^hom  the  jury  was 
to  be  selected,  remarked,  in  this  connection :  "I  will  pass  this  case  un- 
til a  quarter  after  1  this  evening.  Capt.  Peeples  [meaning  the  accused] 
can  get  Drew  Peeples  here,  if  he  wants  him."  Again,  in  ruling  up- 
on the  question  discussed  in  the  first  division  of  this  opinion,  the  judge 
alluded  to  the  efforts  of  counsel  to  introduce  the  testimony  therein  re- 
ferred to  as  being  unnecessary,  because  they  consumed  time  "in  taking 
wild  goose  chases  all  over  the  country  in  these  things."  There  was  no 
occasion  for  making  remarks  of  this  kind,  and  their  effect  upon  the 
prisoner's  case  could  not  have  been  otherwise  than  harmful.     *     *     * 

Judgment  reversed.  All  the  Justices  concurring,  except  Cobb,  J., 
absent  from  providential  cause.*  ^ 


STATE  V.  DUESTROW. 

(Supreme  Court  of  Missouri,  1897.     137  Mo.  44,  38  S.  W.  554,  39  S.  W.  200.) 

Sherwood,  J.*^  *  *  *  g  -^q  error  occurred  in  the  remarks 
made  by  the  court  to  one  of  counsel  for  defendant,  "Take  as  much  time 
as  possible,"  and  ''I  think  you  are  reading  for  your  own  amusement." 
These  remarks  were  brought  out  by  an  exceedingly  prolix  and  ex- 
tended cross-examination  of  Dr.  Bauer,  and  it  was  not  improper  for 
the  court  in  this  way  to  rebuke  the  wholly  unnecessary  consumption 
of  time.  And,  in  any  event,  no  prejudice  could  occur  to  defendant  by 
reason  of  such  remarks.  State  v.  IMusick,  101  Mo.,  loc.  cit.  273,  It  S. 
W.  212.     *     *     * 

We  therefore  affirm  the  judgment,  and  direct  that  the  sentence  pro- 
nounced by  the  law  be  executed.    All  concur.** 

41  Part  of  this  case  is  omitted. 

42  See.  also,  People  v.  Abbott  (Cal.)  M  Pac.  500  (1893);  State  t.  Clements, 
15  Or.  237,  14  Pac.  410  (1887). 

4  3  Part  of  tliis  case  is  omitted. 

44  See,  also,  State  v.  Johnson,  31  La.  Ann.  308  (1879) ;  Butler  v.  State.  91 
Ga.  101,  10  S.  E.  984  (1S92) ;  Commonwealth  v.  Coughliu,  182  Mass.  558,  UO  N. 
E.  207  (1903). 


256  TRIAL.  (Ch.  12 

STATE  V.  McGAHEY. 

(Supreme  Court  of  North  Dakota.  1893.     3  N.  D.  293,  55  N.  W.  753.) 

Bartholomew  C.  j.-j-  *  *  *  When  counsel  for  the  plaintiff  in 
error  asked  the  court  to  compel  the  prosecution  to  produce  and  swear 
Mrs.  Hill,  the  prosecuting  attorney,  in  opposing  such  request,  and  in 
the  presence  and  hearing  of  the  jury,  used  the  following  language: 
"Information  comes  to  me  that  the  witness  whose  presence  is  requested 
as  a  witness  for  the  state  has  been  known  to  be  conniving  and  going 
with  the  defendant  in  endeavoring  to  secure  testimony  in  any  way  that 
it  can  be  secured  as  against  the  state,  in  favor  of  the  defense,  and  for 
that  reason  the  state  declines  to  produce  her  or  to  swear  her  here  as 
a  witness  for  the  state."  Counsel  for  plaintiff  in  error  immediately 
moved  to  strike  out  this  statement  as  an  improper  statement  to  be  made 
before  the  jury.  There  was  no  ruling  on  the  point,  and  this  absence 
of  action  by  the  court  is  assigned  as  error. 

Regarding  the  failure  to  rule  as  equivalent  to  denying  the  motion, 
it  follows  that,  if  the  statement  was  improper,  the  point  made  must 
be  sustained.  The  diligence  of  learned  counsel  has  been  rewarded  with 
the  citation  of  numerous  cases  upon  this  question.  The  citations  are 
all  of  comparative  recent  date,  as  the  question  is  one  of  the'  refine- 
ments of  the  law  that  has  but  recently  developed  into  its  present  pro- 
portions. That  the  rules  announced  in  these  cases  are  in  the  inter- 
ests of  fairness  and  justice,  and  that  they  should  be  implicitly  enforced 
in  all  proper  instances,  cannot  for  a  moment  be  doubted ;  but  they 
should  not  be  indiscriminately  extended.  Counsel  must  have  some 
latitude  and  some  discretion.  In  the  heat  of  nisi  prius  trials,  where 
questions  are  raised  that  must  be  instantly  met,  counsel  cannot  be  ex- 
pected to  weigh  with  nicety  and  precision  the  effect  of  their  words. 
This  matter  must,  of  necessity,  rest  largely  in  the  discretion  of  the 
court,  and  abuse  of  that  discretion  is  not  to  be  rashly  presumed. 

We  are  in  full  accord  with  the  language  of  the  learned  Supreme 
Court  of  the  state  of  Indiana,  that,  "when  the  statement  is  a  general 
one,  and  of  a  character  not  likely  to  prejudice  the  cause  of  the  accused 
in  the  minds  of  honest  men  of  fair  intelligence,  the  failure  of  the  court 
to  check  counsel  should  not  be  deemed  such  an  abuse  of  discretion  as 
to  require  a  reversal."  Combs  v.  State,  75  Ind.  215.  And  more  em- 
phatically would  this  be  true  where,  as  in  this  case,  the  remarks  were 
addressed  to  the  court,  and  were  entirely  pertinent  and  proper  for  the 
court  to  hear;  and,  while  in  the  presence  of  the  jury,  yet  in  no  sense 
directed  to  them,  or  intended  to  influence  them. 

No  case  cited  by  counsel  would  warrant  us  in  sustaining  his  point. 

t  Part  of  the  opinion  is  omitted. 


Ch.  12)  TRIAL.  257 

The  cases  will  be  found  to  fall  almost  without  exception  into  one  of 
three  classes.  By  far  the  largest  class  are  cases  where  counsel  have 
violated  some  express  statutory  provision,  such  as  referring  in  argu- 
ment to  the  jury  to  the  fact  that  a  defendant  in  a  criminal  case  failed  to 
be  sworn  as  a  witness,  or  by  referring  on  a  second  trial  to  the  fact  of 
a  former  conviction.  In  these  cases  a  reversal  is,  of  course,  imperative. 
In  other  cases  counsel  have  stated  to  the  jury,  as  facts  in  counsel's 
own  knowledge,  matters  prejudicial  to  the  defendant,  but  immaterial 
to  the  issue  on  trial,  and  which  could  not  be  properly  given  in  evidence ; 
or  have  sought  to  augment  the  force  of  the  evidence  by  their  own  pos- 
itive but  unsworn  assertion  of  a  pertinent  and  material  matter.  An- 
other class  of  cases  comprise  the  instances  where  counsel,  in  argument, 
have  assumed  certain  facts  to  be  proven,  of  which  there  was  no  evi- 
dence whatever.  In  all  the  cases  it  will  be  found  that  the  objection- 
able language  was  gratuitous. 

In  this  instance,  under  the  condition  of  the  authorities  heretofore 
cited,  the  prosecuting  attorney  was  entirely  warranted  in  beheving  that, 
when  opposing  counsel  demanded  that  he  produce  and  swear  as  a  wit- 
ness for  the  state  a  party  who  was  present  at  the  transaction,  it  was 
imperatively  necessary  for  him  to  render  to  the  court  a  good  and  suf- 
ficient reason  for  not  so  doing.  This  he  did  in  a  manner  by  no  means 
extravagant,  and  what  he  said  could  only  indirectly  affect  the  accused 
by  impairing  the  credit  of  a  witness  whom  he  subsequently  called. 
But  we  do  not  think  its  effect  even  went  to  that  extent.  The  prose- 
cutor was  careful  to  state  nothing  as  a  fact.  He  did  not  give  to  the 
statement  the  weight  of  his  own  assertion  of  its  truthfulness.  He 
simply  said  that  information  had  come  to  him  of  a  certain  character. 
This  information  was  such  that  it  would  be  dangerous  for  him  to  call 
the  party,  unless  he  knew  the  information  to  be  false.  We  do  not  think 
the  language  used,  in  the  manner,  under  the  circumstances,  and  for  the 
purpose  stated,  was  at  all  "likely  to  prejudice  the  cause  of  the  accused 
in  the  minds  of  honest  men  of  fair  intelligence,"  and  hence  there  was 
no  abuse  of  judicial  discretion  in  refusing  to  strike  it  out,  or  caution 
the  jury  against  it.    *    *    '•' 

The  judgment  of  the  trial  court  must  be  affirmed.    All  concur. 


When  they  are  to  swear,  let  them  swear  one  after  another,  that 
they  will  speak  the  truth  of  what  shall  be  demanded  of  them  on  our 
part,  so  help  them  God  and  the  saints.  And  let  no  falsehood  be  ever 
knowingly  practised ;  for  they  cannot  swear  in  a  matter  of  greater 
moment,  than  in  that  of  life  and  member.  Afterwards  let  the  jurors 
be  charged  of  what  fact  they  are  to  speak  the  truth.  And  then  let 
them  go  and  confer  together,  and  be  kept  by  a  bailiff",  so  that  no  one 
Mik.Cb.Pr.— 17 


258  TRIAL.  (Ch.  12 

speak  to  them ;   and  if  any  one  does  so,  or  if  there  be  any  one  among 
them  who  is  not  sworn,  let  him  be  committed  to  prison,  and  all  the 
rest  amerced  for  their  folly  in  suffering  it.*^ 
Britton,  bk.  1,  12. 


REX  V.  STONE. 
(Court  of  King's  Beuch,  179G.     6  Term  R.  527.) 

The  prisoner  was  tried  at  the  bar  of  this  court  on  the  28th  and  29th 
days  of  January,  in  this  term,  upon  an  indictment  for  high  treason  on 
two  branches  of  25  Edw.  Ill,  St.  5,  c.  2,  for  compassing  the  death  of 
the  king,  and  for  adhering  to  his  enemies.     *     *     * 

The  court  having  sat  on  the  first  day  of  the  trial  from  9  o'clock  in 
the  morning  till  10  o'clock  at  night  without  any  interruption  or  re- 
freshment, and  the  Attorney  General  stating  that  his  evidence  would 
occupy  four  hours  more,  and  some  of  the  jury  being  very  much  ex- 
hausted and  incapable  as  they  declared  of  keeping  up  their  attention 
much  longer,  the  court  adjourned  till  9  o'clock  the  next  morning; 
Lord  Kenyon  observing  that  necessity  justified  what  it  compelled,  and 
that,  though  it  was  left  to  modern  times  to  bring  forward  cases  of 
such  extraordinary  length,  yet  no  rule  could  compel  the  court  to  con- 
tinue longer  sitting  than  their  natural  powers  would  enable  them  to  do 
the  business  of  it.  The  jury  retired  to  an  adjoining  tavern,  where 
accommodations  were  prepared  for  them,  and  the  bailiffs  were  sworn 
"well  and  truly  to  keep  the  jury  and  neither  to  speak  to  them  them- 

4  5  After  the  jury  has  retired  to  consider  their  verdict,  they  should  he  kept 
together  until  they  find  a  verdict,  or  are  dismissed  by  the  court.  Ma  her  v. 
State,  .3  Minn.  444  (Gil.  329)  (1859).  And  if  defendant  was  prejudiced  by  a 
separation  of  the  jury,  a  new  trial  will  be  granted.  Some  courts  presume 
such  prejudice  from  the  mere  fact  of  separation.  People  v.  Thornton,  74 
Cal.  482,  16  Pac.  244  (1888).  And  require  affirmative  evidence  to  the  contrary 
to  prevent  a  new  trial.  Cornwall  v.  State,  91  Ga.  277,  18  S.  B.  154  (1892) ; 
Eastwood  V.  People,  3  Parker,  Cr.  R.  (N.  Y.)  25  (1855). 

If  the  jury  is  kept  together  in  the  custody  of  the  officer,  it  has  been  held 
that  a  new  trial  will  not  be  granted  because  the  jury  were  allowed  to  attend 
religious  services  at  a  church.  State  v.  Kent,  5  N.  D.  516,  67  N.  W.  1052,  35 
L.  R.  A.  518  (1896).  Or  to  go  to  a  theater.  Jones  v.  People,  6  Colo.  4.52,  45  Am. 
Rep.  526  (1882). 

After  being  sworn  and  before  retiring  to  consider  their  verdict,  the  jury 
may,  in  cases  of  misdemeanor,  be  allowed  to  separate.  Reg.  v.  Kinnear,  2 
B.  &  Aid.  462  (1819) ;  Bowdoin  v.  State,  113  Ga.  1150,  39  S.  E.  478  (1901).  In 
cases  of  felony,  the  common-law  rule  forbade  the  separation  of  the  jury. 
Reg.  V.  Hare,  3  Post.  &  F.  315  (18G2).  And  see  Delmare's  Case,  11  How.  St. 
Tr.  559  (1686) ;  Hardy's  Case,  24  How.  St.  Tr.  416  (1794) ;  Reg.  v.  Kinnear, 
2  B.  &  Aid.  462  (1819).  This  rule,  however,  was  not  followed  in  the  United 
States,  except  in  capital  cases.  People  v.  Shafer,  1  Utah,  260  (1875) ;  Mc- 
Creary  v.  Commonwealth,  29  Pa.  323  (1857);  State  v.  Collins,  81  Mo.  652 
(1884).  And  not  always  even  in  capital  cases.  Stephens  v.  People,  19  N.  Y. 
549  (18.59) ;  State  v.  Belcher,  13  S.  C.  459  (1880).  It  was  abolished  in  England 
by  the  act  of  60  &  61  Vict.  c.  IS  (1897),  in  cases  other  than  treason,  murder, 
and  treason  felony. 


Ch.  12)  TRIAL.  2u9 

selves,  nor  suffer  any  other  person  to  speak  to  them  touch.iiTg  any 
matter  relative  to  this  trial." 

The  entry  of  the  adjournment  was  in  this  form: 

Thursday  next  after  fifteen  days  of  St.  Hilary  in  the  36th  year,  etc. 
Forasmuch  as  it  appears  to  the  court  here  from  the  length  of  time 
which  has  been  already  occupied  by  the  trial  of  the  issue  joined  upon 
this  indictment  and  the  further  time  which  will  be  necessarily  occupied 
by  the  same  that  justice  cannot  be  done  if  this  court  proceed  without 
intermission  upon  the  said  trial ;  it  is  ordered  that  the  jury  impanneled 
and  sworn  to  try  the  said  issue  have  leave  to  withdraw  from  the  bar 
of  this  court,  being  well  and  truly  kept  by  six  baililts  duly  sworn  not 
to  permit  any  person  to  speak  to  them  touching  any  matter  relative 
to  the  trial  of  this  issue;  and  that  the  same  jury  shall  again  come  to 
the  bar  of  this  court  on  the  morrow  at  nine  o'clock  in  the  forenoon. 
And  it  is  further  ordered  that  the  prisoner  be  again  brought  to  the 
bar  of  this  court  at  that  time. 

By   the    Court.      The   prisoner   was   allowed   occasionally    to    sit. 

*         *         :!=   -4  6 


BENNET  V.  THE  HUNDRED  OF  HARTFORD. 

(Upper  Bench,  1G50.     Style,  233.) 

In  a  Tryall  at  Bar  between  the  inhabitants  of  Hartford  and  Bennet 
a  Carver  upon  an  Action  brought  against  them  upon  the  Statute  of 
Winchester,  for  a  robbery  committed  within  that  Hundred  upon  his 
servant.  It  was  said  by  the  Court,  that  if  either  of  the  parties  to  a 
tryall  desire  that  a  Juror  may  give  evidence  of  something  of  his  own 
knowledge,  to  the  rest  of  the  Jurors,  that  the  Court  will  examine  him 
openly  in  Court  upon  his  oath,  and  he  ought  not  to  be  examined  in 
private  by  his  companions.  And  it  was  also  said,  that  if  a  robbery  be 
done  in  crepusculo,  the  Hundred  shall  not  be  charged;  but  if  it  be 
done  by  cleer  day  light,  whether  it  be  before  Sun  rise  or  after  Sun 
set,  it  is  all  one,  for  the  Hundred  shall  be  charged  on  both  cases. 


HAREBOTTLE  v.  PLACOCK. 

(Court  of  King's  Bench,  1  Jac.  I.    Cro.  .Tac.  21.) 

Ejectment  of  land,  and  a  coal-pit  in  the  same  land.  The  defendant 
pleaded  not  guilty,  and  it  was  found  against  him.  It  was  now  moved 
in  arrest  of  judgment:  *  *  *  Thirdly,  because  the  jurors  had 
taken  meat  and  drink  before  their  verdict  given  ;  which  is  certified 
upon  the  postea,  but  not  examined  at  whose  charge. 

*6  Part  of  this  case  is  omitted. 


260  TRIAL.  (Ch.  12 

The  Court  said,  that  would  make  a  great  difference;  for  if  it  were 
at  the  cost  of  the  party  for  whom  they  gave  their  verdict,  it  will  make 
the  verdict  void ;  but  if  it  were  at  their  own  costs,  it  is  only  fineable, 
and  the  verdict  good.*^ 


PEOPLE  V.  CULLEN. 

(Supreme  Court  of  New  Yox-k,   General  Term,   First  Department,  1889.     53 
Hun,  G29,  5  N.  Y.   Supp.  886.) 

Indictment  against  Dennis  J.  Cullen,  in  three  counts,  charging  that 
defendant  made  an  assault  on  one  Lizzie  Voss,  she  being  of  the  age  of 
seven  and  a  half  years,  and  attempted  to  have  sexual  intercourse  with 
her.  *  *  *  During  the  cross-examination  of  complainant,  which 
was  as  to  the  details  of  the  alleged  attempt,  one  of  the  jurors  ex- 
claimed :   "We  have  heard  enough  now."     *     *     * 

Van  Brunt,  P.  J.*^  *  *  *  ^g  to  the  exclamation  of  the  juror 
during  the  progress  of  the  trial,  it  may  very  well  have  been  called  forth 
by  the  reiteration  of  the  disgusting  evidence  of  the  case,  and  in  no 
way  indicated  that  the  juror  was  in  any  way  not  impartial  between  the 
prisoner  and  the  people. 

Upon  the  whole  case,  therefore,  we  think  that  the  conviction  should 
be  affirmed.    All  concur. 


McKAHAN  v.  BALTIMORE  &  O.  R.  CO. 

(Supreme  Court  of  Penusylvania,  1909.     223  Pa.  1,  72  Atl.  251.) 

Brown,  J.*^  *  *  *  g^i-^  even  if  the  case  were  for  a  jury,  the 
judgment  would  have  to  be  reversed  for  the  misconduct  of  a  juror 
following  an  improper  remark  and  a  misstatement  of  the  law  by  the 
trial  judge  during  the  argument  on  the  motion  for  a  nonsuit.  Counsel 
for  the  defendant  stated  in  that  argument  that  the  case  was  one  of  a 
railroad  so  constructed  across  a  public  road  that  there  was  no  point 
where  a  traveler  could  stop,  look,  and  listen,  and,  as  he  avers,  before 
he  could  follow  this  with  the  statement  that  there  was  such  a  point  be- 
yond the  mill  siding,  he  was  interrupted  by  the  court  with  the  remark 
that,  if  that  wxre  so,  "the  railroad  ought  certainly  to  have  had  some- 
body there  to  give  warning."  This  was  followed  by  applause  from 
the  audience  in  the  courtroom,  in  which  one  of  the  jurors  impaneled 
in  the  case  joined  by  clapping  his  hands.  A  motion  was  promptly 
made  by  counsel  for  the  defendant  for  the  withdrawal  of  a  juror  and 
the  continuance  of  the  case  until  the  next  term,  which  was  refused. 

On  the  instant  the  court  should,  of  its  own  motion,  have  taken  no- 
tice of  the  misconduct  of  the  juror  and,  after  discharging  him  from 

4  7  Part  of  this  case  is  omitted. 


Ch.  12)  TRIAL.  201 

further  service  and  continuing  the  case,  imposed  a  proper  penalty 
upon  him.  This  was  due  to  the  orderly  administration  of  justice  and 
to  the  court's  own  dignity.  Neither  the  trial  judge's  "knowledge  of 
the  offending  juryman"  nor  his  apology  can  be  regarded  as  an  excuse 
for  the  court's  failure  to  discharge  its  duty,  and,  in  neglecting  to  do 
so,  the  case  went  on,  in  the  face  of  defendant's  protest,  before  at  least 
one  juror  who  had  shown  himself  unfit  to  try  it.  In  view  of  his  open 
exhibition  of  feeling  and  his  applauding  concurrence  in  the  incorrect 
statement  of  the  court  that  it  was  the  duty  of  the  defendant  to  have 
had  somebody  at  the  crossing  to  give  warning,  it  was  the  appellant's 
clear  right  to  ask  that  he  be  declared  disqualified  to  further  sit  in  judg- 
ment between  it  and  the  plaintiff,  for  the  case  could  not  safely  be  there- 
after committed  to  him  by  any  admonition  of  the  trial  judge  in  his 
charge  that  it  would  have  to  be  considered  and  disposed  of  by  the 
jury  "without  any  reference  to  that  little  incident"  and  the  expression 
of  confidence  by  the  court  that  the  offending  juror  would  so  dispose 
of  it. 

The  impression  made  upon  the  mind  of  the  juror  by  the  remark  of 
the  judge  was  manifestly  against  the  defendant,  and  not  likely  to  be 
changed  by  anything  submitted  by  it  in  its  defense.  Those  of  us  who 
have  had  experience  in  jury  trials  know  that  impressions  once  made- 
are  not  easily  erased,  in  spite  of  all  the  caution  jurors  may  receive 
from  the  court.  Shaeft'er  v.  Kreitzer,  6  Bin.  430.  "It  is  one  thing  to- 
prevent  the  entry  of  an  influence  into  the  mind,  and  quite  another  tO' 
dislodge  it.  As  well  might  one  attempt  to  brush  off  with  the  hand  a 
stain  of  ink  from  a  piece  of  white  linen.  One  in  the  very  nature  of 
things  is  just  as  impossible  as  the  other."  Orlady,  J.,  in  Fisher  v. 
Pennsylvania  Co.,  34  Pa.  Super.  Ct.  500. 

Judgment  reversed.^" 


COMMONWEALTH  v.  JONGRASS. 

(Supreme  Court  of  Pennsylvania,  1S97.     181  Pa.  172,  37  Atl.  207.) 

Per  Curiam.  There  is  no  code  of  professional  ethics  that  is  pe- 
culiar to  the  criminal  courts.  There  are  no  methods  of  practice  to  be 
tolerated  there  that  are  not  equally  entitled  to  recognition  in  the  civil 
courts.  Subtle  distinctions  that  mark  no  substantial  differences,  and 
that  do  not  affect  the  merits  of  a  controversy,  unless  it  may  be  to  ob- 
scure or  to  defeat  them,  should  not  be  allowed  to  thwart  justice,  in 
the  interests  of  disorder  and  crime.  The  assignments  of  error  in  this 
case  raise  two  questions  of  this  class.  They  touch  no  important  right 
of  a  defendant. 

The  first  one  relates  to  the  validity  of  the  oath  administered  by  the 
interpreter  to  some  of  the  witnesses.     The  form  of  the  oath  is  not 

60  See,  also.  Smalls  v.  State,  102  Ga.  31,  29  S.  E.  l.->3  (1897). 


262  TRIAL.  (Ch.  12 

questioned,  nor  is  it  denied  that  the  interpreter  correctly  translated  it 
into  the  language  of  the  witness.  It  was  done  in  the  presence  and  un- 
der the  immediate  direction  of  the  court.  Under  such  circumstances, 
if  it  had  been  administered  by  a  bystander  it  would  have  bound  the 
conscience  of  the  witness,  both  in  law  and  in  morals,  as  a  valid  oath. 
It  was  not  necessary  that  the  clerk  should  repeat  the  oath  to  the  inter- 
preter every  time  he  was  called  upon  to  administer  it  to  a  witness.  It 
was  enough  if  this  was  done  at  the  beginning  of  the  examination.  The 
interpreter  acts  under  the  sanction  of  his  oath  as  such,  when  he  ad- 
ministers the  oath  to  the  witness,  no  less  than  when  he  interprets  the 
testimony  of  the  witness  to  the  court  and  jury. 

The  other  question  relates  to  the  refusal  of  the  court  below  to  set 
aside  the  verdict  because  it  was  alleged  that  one  of  the  jurors  had,  for 
an  instant,  appeared  to  be  asleep.  This  motion  was  addressed  to  the 
discretion  of  the  court.  It  depended  upon  a  fact  that  must  have  trans- 
pired in  the  presence  of  the  learned  judge.  If  this  assignment  was 
regular,  we  could  not  consider  it  upon  this  record.  The  learned  judge 
■stated,  when  this  motion  was  before  him,  that  he  had  given  particular 
attention  to  this  juryman  during  the  trial,  because  of  his  age,  and  was 
able  to  say  upon  his  own  knowledge  that  he  was  awake  and  attentive 
except  for  a  single  instant,  and  that  he  lost  nothing  of  the  trial.  It 
was  idle  to  call  witnesses  to  prove  what  the  learned  judge  knew  to  be 
untrue.  He  would  not  have  been  bovmd  by  such  testimon}-,  if  given, 
for  neither  a  judge  nor  a  juror  is  bound  to  accept  the  statement  of  a 
witness  that  contradicts  the  testimony  of  his  own  senses.  The  evi- 
dence abundantly  justified  the  conviction. 

The  assignments  of  error  are  overruled,  the  judgment  affirmed,  and 
the  record  remitted  for  purposes  of  execution.^^ 


CHEEK  v.  STATE. 

(Supreme  Court  of  Indiana,  1871.     3.5  Ind.  492.) 

PettiT,  J.^-  The  appellant  was  indicted  for  murder  in  the  first  de- 
gree, for  killing  one  Thomas  Harrison,  in  the  Dearborn  circuit  court. 

^:         *         * 

Two  of  the  jurors,  over  the  objection  of  the  defendant,  and  after 
the  court  had  told  them  they  must  not  do  so,  persisted  in  writing  down 
notes  of  the  evidence.  This  disobedience  of  the  order  of  the  court  was 
a  gross  violation  of,  and  contempt  for,  the  authority  of  the  court,  and 
was  misconduct  for  which  the  jurors  might  have  been  severely  pun- 
ished, and  of  itself  would  entitle  the  defendant  to  a  new  trial.  It  was 
well  calculated  to  divert  the  attention  of  the  jurors,  while  they  were 

51  See,  also,  McClary  v.  State,  75  Ind.  2G0  (ISSl). 

52  Part  of  this  case  is  omitted. 


Cb.  12)  TRIAL. 


263 


busy,  pencil  or  pen  in  hand,  from  the  evidence,  as  it  would  naturally 
be  progressing-  while  such  notes  were  being  made.  The  juror  is  to 
register  the  evidence,  as  it  is  given,  on  the  tablets  of  his  memory,  and 
not  otherwise.  Then  the  faculty  of  the  memory  is  made,  so  far  as  the 
jury  is  concerned,  the  sole  depository  of  all  the  evidence  that  may  be 
given;  unless  a  different  course  be  consented  to  by  the  parties,  or  the 
court.  Burrill,  Cir.  Ev.  (3d.  Ed.)  108,  and  note.  The  jury  should  not 
be  allowed  to  take  the  evidence  with  them  to  their  room,  except  in 
their  memory.  It  can  make  no  difference  whether  the  notes  are  writ- 
ten by  a  juror  or  by  some  one  else.  Jurors  would  be  too  apt  to  rely  on 
what  might  be  imperfectly  written,  and  thus  make  the  case  turn  on  a 
part  only  of  the  facts.     *     '^     * 

The  judgment  is  reversed,  with  instructions  to  the  court  below  to 
give  the  appellant  a  new  trial.^^ 


PEOPLE  v.  McCURDY. 

(Supreme  Court  of  California,  18SG.     GS  Cal.  576,  10  Pac.  207.) 

SNARLS,  C."  The  defendant  was  accused  by  information  of  the 
murder  of  one  Charles  W.  Dreher,  in  the  county  of  Lake,  on  the  14th 
day  of  July,  1884,  and  as  the  result  of  a  trial  was  convicted  of  murder 
in  the  first  degree,  and  sentenced  to  suffer  the  extreme  penalty  of  the 
law.  The  appeal  is  from  an  order  denying  a  motion  for  a  new  trial, 
and  from  an  order  denying  a  motion  in  arrest  of  judgment.     *     *     * 

It  is  objected  that  J.  A.  Tennison,  one  of  the  jurors,  acted  in  an 
improper  manner.  So  far  as  the  record  shows,  the  county  clerk  and 
one  of  the  counsel  for  the  prosecution,  during  the  progress  of  the  trial, 
were  engaged  in  conversation  in  reference  to  the  case  when  the  juror 
Tennison  joined  them,  whereupon  the  county  clerk  very  properly  called 
attention  to  the  fact  that  Tennison  was  a  juror,  and  said  thev  nuist 
not  talk,  as  "Lane  is  one  of  the  jurors,"  to  which  Tennison  replied  to 
the  effect  that  "they  might  go  ahead ;  it  wouldn't  make  any  difference 
to  him."  The  remark  seems  to  have  been  a  correct  one.  and  in  it  we 
fail  to  see  any  sufficient  evidence  of  a  disposition  to  act  improperly  in 
the  case.     *     *     * 

53  Compare,  Thomas  v.  State,  90  Ga.  4.37,  16  S.  E.  04  (1802). 

"Tliere  is  no  doubt,  liowever,  that  tlie  reading  of  ne\vs]>apers  by  jurors  while 
engaged  in  the  trial  of  a  cause  is  an  inattention  to  duty,  which  ought  to  be 
promptly  corrected,  and  if  the  newspaper  contauis  any  matter  in  connection 
with  the  subject-matter  of  the  trial,  which  would  be  at  all  likely  to  influence 
jurors  in  the  performance  of  duty,  the  act  will  constitute  grounds  for  a  motion 
for  a  new  trial.  *  *  *  Tf  it  be  proved  as  a  fact,  or  may  I)o  presumed  as  a 
conclusion  of  law,  that  the  verdict  may  have  been  influencod  by  information 
or  impressions  received  from  sources  outside  of  the  evidence  in  the  case,  such 
a  verdict  is  subject  to  be  set  aside."  Mclvee,  J.,  in  I'eople  v.  McCoy,  71  Cal. 
397,  12  Pac.  273  (1886). 

See,  also,  People  v.  Gaffney,  14  Abb.  Pi-ac.  N.  S.  (X.  Y.)  3G  (1S72). 

64  Part  of  this  case  is  omitted. 


264  TRIAL.  (Ch.  12 

Our  examination  has  failed  to  develop  any  sufficient  cause  to  war- 
rant a  reversal,  and  we  are  of  opinion  the  orders  overruling-  the  mo- 
tions for  a  new  trial  and  in  arrest  of  judgment  should  be  affirmed. 

We  concur :   FooTE,  C. ;  Belcher,  C.  C. 

By  the  Court.  For  the  reasons  given  in  the  foregoing  opinion  the 
orders  are  affirmed.^* 


PEOPLE  v.  FLACK. 

(Supreme  Court  of  New  York,  General  Term,  First  Department.     1S90.     57 
lluu,  S3,  10  N.  Y.   Supp.  475.) 

Van  Brunt,  P.  J.^**  *  *  *  'pj-,g  Qj-,iy  other  exception  which  ap- 
pears upon  the  counsel's  brief  is  one  which  is  not  argued  at  length, 
and  it  is  to  the  etlect  that  the  court  erred  in  denying  a  motion  for  a 
new  trial  based  upon  the  intrusion  of  a  World  reporter  into  the  jury- 
room  during  their  deliberations.  It  appearing  in  the  record  of  this  case, 
from  the  affidavits  of  the  jurors,  that  their  judgment  was  in  no  man- 
ner affected  by  reason  of  the  intrusion  of  this  man,  without  their 
knowledge,  into  the  jury  room,  it  is  evident  that  the  defendants  have 
sustained  no  damage,  and  consequently  the  verdict  cannot  be  set  aside 
upon  that  ground.  But  it  is  also  clear  that,  whatever  rights  the  de- 
fendants may  have  had  by  reason  of  the  happening  of  this  incident, 
they  were  waived  by  the  subsequent  conduct  of  the  defendants  and 
their  counsel.  After  they  had  full  knowledge  of  the  facts,  they  per- 
mitted the  trial  to  go  on,  and  the  jury  to  be  sent  back  without  objec- 
tion, and  asked  the  court  to  give  instructions  to  the  jury  on  their  be- 
half, the  refusal  to  give  some  of  which  forms  one  of  the  grounds  upon 
which  this  appeal  is  founded.  Under  such  circumstances  the  defend- 
ants cannot  now  be  heard  to  claim  immunity  because  of  this  alleged 
irregularity.  They  had  their  opportunity  to  object  to  the  sending  back 
of  this  jury.  They  did  not,  and  they  cannot  now  be  allowed  to  assume 
the  position  of  speculating  upon  the  verdict  of  the  jury.  If  it  was  in 
their  favor,  they  would  be  discharged ;  if  against  them,  it  would  be 
set  aside.     *     *     * 

There  do  not  appear  to  be  any  errors  which  would  justify  a  re- 
versal of  the  judgment,  and  it  should  be  affirmed.    All  concur.^^ 

■"-•">  See.  also.  State  v.  Kent,  .5  X.  D.  olfi.  G7  N.  W.  ]0.j2,  35  L.  R.  A.  518 
(1896);  People  v.  Brauuigau,  21  Cal.  337  (1863);  Gaboon  v.  State,  20  Ga. 
752  (18.56). 

"If  the  jury  were  really  subjected  for  lioiirs  to  the  Influence  of  an  excited 
crowd  of  men  who  discussed  the  merits  of  the  controversy  and  demanded  tlie 
guilt  of  the  prisoner  in  their  hearing,  the  integrity  and  purity  of  the  trial 
would  of  course  be  impeached,  and  a  new  trial,  freed  from  all  bias  and  undue 
influence,  would  be  the  least  reparation  that  the  law  could  make  in  behalf 
of  justice."  Cockrill,  C.  J.,  in  Vaughan  v.  State,  57  Ark.  8,  20  S.  W.  588 
(1892). 

5  6  Part  of  this  case  is  omitted. 

57  See,  also,  Goerson  v.  Commonwealth,  106  Pa.  477,  51  Am.  Rep.  534  (18S4) ; 
State  V.  Cartright,  20  W.  Va.  32  (1882). 


Ch.  12)  TRIAL.  265 


PEOPLE  V.  LINZEY. 

(Supreme  Court  of  New  YorU,  Geueral  Term,  Fifth  Department.   1S04.     79 
Hun,  23,  20  N.  Y.  Supp.  500.) 

Haight,  J.^^  The  defendant  was  convicted  of  the  ofifense  of  steal- 
ing a  $20  bill  from  the  money  drawer  in  the  coal  office  owned  by  John 
Hamlin  at  East  Broomfield  Station,  in  the  county  of  Ontario.     *     *     * 

The  defendant's  counsel,  in  his  affidavit  to  procure  an  allowance  of 
an  appeal  from  the  judgment  of  the  court  of  special  sessions,  among 
other  things  states  that:  "He  has  been  informed  by  the  said  justice 
and  one  of  the  jurors  who  tried  said  case  that,  after  the  jury  retired 
to  consider  their  verdict,  said  justice  went  to  said  jury  room,  and  read 
to  said  jury  the  information  upon  which  the  warrant  was  issued  in 
said  case,  and  that  that  was  done  without  the  knowledge  or  consent 
of  the  defendant  or  his  attorney,  nor  was  either  of  them  present  when 
said  statements  were  so  read  as  aforesaid." 

The  justice  in  his  return  says  nothing  in  reference  to  this  charge, 
but  he  attaches  thereto  his  affidavit,  in  which  he  states :  "That  he  en- 
tered the  jury  room,  while  they  were  deliberating  upon  the  case,  at 
the  request  of  the  officer  in  charge,  supposing  that  a  verdict  had  been 
agreed  upon ;  that  upon  learning,  immediately  after  entering,  that  no 
agreement  had  been  reached,  deponent  told  the  jurymen  he  had  no 
right  to  be  there  without  the  attorney,  and  turned  to  leave  the  room, 
when  one  of  the  jurymen  said  that  they  wanted  to  know  with  what 
crime  the  defendant  was  charged;  to  which  deponent  replied,  after 
opening  the  information,  but  not  reading  therefrom,  'Petit  larceny;' 
that  no  other  conversation  was  had  by  deponent  while  in  the  jury 
room,  and  no  information  or  evidence  was  read  to  them." 

5  8  Part  of  this  ease  is  omitted. 

"The  common-h\w  rule  in  criminal  cases  was  that  the  .lury.  when  they  r^ 
tire<l  to  deliberate  on  their  verdict,  should  take  with  them  such  books  and 
Daners  which  had  been  produced  in  evidence  as  the  judge  presiding  should 
direct  *  *  *  Whether  a  writing  introduced  in  evidence  in  a  criminal  case 
should  he  delivered  to  the  jury,  to  be  consulted  by  them  in  the  jury  room. 
rests  in  the  sound  discretion  and  judgment  of  the  court,  and  it  is  therefore 
not  error  to  permit  a  jury  to  take  a  written  statement,  unless  the  reviewing 
court  can  say  that  such  course  was  prejudicial  to  the  defendant.  Boggs, 
J.,  in  Dunn  v.  People,  172  111.  .58^.  50  N.  E.  138  (1808).       ,      ^  .  ,  _, 

"Another  contention  of  the  defendant  is  that  during  the  trial  one  of  the 
iurors  had  a  copv  of  the  Penal  Code  and  Code  of  Criminal  Procedure,  which 
he  read  and  exhibited  to  some  of  his  fellows.  *  *  *  We  are  of  o).inion 
that  while  reading  the  Code  by  the  jurors  may  be  regarded  as  irregular,  and 
as  misconduct  on  their  part,  yet,  as  there  is  no  proof  that  it  in  any  way 
affected  the  result,  or  was  prejudicial  to  the  defendant,  the  court  below  was 
justihed  in  denying  his  application  for  a  new  trial,  so  far  as  it  was  based  on 
that  ground."     Martin,  J.,  in  People  v.  Priori,  1&4  N.  1.  470,  o8  N.  L.  6r2 

^^  See.'  also,  People  v.  Draper,  28  IIuu  (N.  Y.)  1  (1SS2).    Cf.  Mitchell  v.  Carter, 
14  Ilun  (N.  Y.)  448  (1878).  .      .  .    ,       •  ,  ., 

As  to  the  burden  of  proof  to  establish  the  effect  of  misbehavior,  and  the  eM- 
dence  admissible  to  establish  it.  see  State  v.  Cartright.  20  ^  •  \a-  ^-^^^^^-j  = 
Vaughan  v.  State.  57  Ark.  1,  20  S.  W.  588  (1892) ;  Riley  v.  State,  9  Humph. 
(Temi.)  G4G  (1849). 


2GG  TRIAL.  (Ch.  12 

The  practice  is  that  where  an  appeal  is  founded  upon  an  error  in 
fact  not  appearing  upon  the  record,  and  not  within  the  knowledge  of 
the  justice,  the  court  may  determine  the  matter  upon  affidavit;  but 
the  error  here  charged  was  within  the  knowledge  of  the  justice,  for 
it  has  reference  to  his  own  conduct  pending  the  deliberation  of  the 
jury,  and  the  facts  in  reference  thereto  should  have  been  incorporated 
in  his  return.  Vallen  v.  McGuire,  49  Hun,  594,  2  N.  Y.  Supp.  381. 
But,  we  think,  in  this  case  we  may  treat  his  affidavit  attached  to  the 
return  as  a  part  thereof  and  determine  the  question  upon  the  facts  pre- 
sented. In  Sargent  v.  Roberts,  1  Pick.  (Mass.)  337,  11  Am.  Dec.  185, 
the  foreman  of  the  jury  wrote  to  the  judge  that  they  could  not  agree, 
and  that  they  waited  for  his  directions.  The  judge  answered  in  writ- 
ing, saying  that  he  was  unwilling,  after  so  much  time  had  been  con- 
sumed in  the  case,  to  permit  them  to  separate,  and  gave  some  direc- 
tions that  would  enable  them  to  consider  the  case  in  a  more  systematic 
manner,  and  added  that  the  officer  had  directions  to  take  them  to  a 
more  convenient  apartment,  if  they  desired.  On  review,  the  judgment 
was  reversed,  and  a  new  trial  granted. 

Parker,  C.  J.,  in  delivering  the  opinion  of  the  court,  says:  "It  is  im- 
possible, we  think,  to  complain  of  the  substance  of  the  communication. 
The  only  question  is  whether  any  communication  at  all  is  proper,  and, 
if  it  was  not,  the  party  against  whom  the  verdict  was  is  entitled  to  a 
new  trial,  and  we  are  all  of  the  opinion,  after  considering  the  question 
maturely,  that  no  communication  whatever  ought  to  take  place  be- 
tween the  judge  and  the  jury  after  the  cause  has  been  committed  to 
them  by  the  charge  of  the  judge,  unless  in  open  court,  and,  where 
practicable,  in  the  presence  of  the  counsel  in  the  case.  The  oath  ad- 
ministered to  the  officer  seems  to  indicate  this  as  the  proper  course. 
He  is  to  suffer  no  person  to  speak  to  them  nor  to  speak  to  them  him- 
self, unless  to  ask  them  whether  they  are  agreed,  and  he  is  not  to  suf- 
fer them  to  separate  until  they  are  agreed,  unless  by  the  order  of  the 
court.  When  the  court  has  adjourned,  the  judge  carries  no  power 
with  him  to  his  lodging,  and  has  no  more  authority  over  the  jury  than 
any  other  person,  and  any  direction  to  them  from  him,  either  verbally 
or  in  writing,  is  improper.  It  is  not  sufficient  to  say  that  the  power  is 
in  the  hands  highly  responsible  for  a  proper  exercise  of  it.  The  only 
sure  way  to  prevent  all  jealousies  and  suspicions  is  to  consider  the 
judge  as  having  no  control  whatever  over  the  case  except  in  open 
court,  in  the  presence  of  the  parties  and  their  counsel.  The  public 
interest  requires  that  litigating  parties  should  have  nothing  to  com- 
]ilain  of  or  suspect  in  the  administration  of  justice,  and  the  convenience 
of  jurors  is  of  small  consequence  when  compared  to  this  great  object." 

In  Bunn  v.  Croul,  10  Johns.  239,  while  the  jury  were  deliberating 
on  their  verdict,  the  justice  was  requested  to  inform  them  whether  a 
particular  point  of  evidence  had  been  given,  stating  it  to  him.  The 
justice  informed  the  jury  that  it  had,  and  mentioned  the  name  of  the 
witness  who  had  testified  to  the  fact.     A  verdict  was  found  for  the 


€b.  12)  TRIAL.  267 

plaintifif,  on  which  the  justice  gave  judgment.  On  review,  the  judg- 
ment was  reversed,  the  court  saying:  "It  cannot  fairly  be  inferred 
from  the  return  that  the  explanation  given  by  the  justice  to  the  jury 
after  they  had  retired  to  make  up  their  verdict  was  by  the  consent  or 
in  the  presence  of  the  parties.  If  it  was  not,  the  allowance  of  such  a 
practice  would  be  dangerous  to  the  rights  of  parties.  The  justice's 
recollection  might  not  be  accurate  as  to  what  the  witness  had  said, 
and  for  that  reason  the  testimony  might  be  misstated,  when,  if  the 
parties  were  present,  or  the  witnesses  again  called  to  repeat  their  tes- 
timony, any  mistake  might  be  corrected." 

In  Taylor  v.  Betsford,  13  Johns.  487,  the  justice  went  into  the  jury 
room,  at  the  request  of  the  jury,  to  answer  certain  questions  proposed 
to  him,  and  the  judgment  was  reversed,  the  court  saying:  "The  only 
error  necessary  to  be  noticed  in  this  case  is  that  the  justice  went  into 
the  room  with  the  jury  at  their  request,  privately  and  apart  from  the 
parties,  to  answer  certain  questions  proposed  to  him  by  the  jury.  This 
we  have  repeatedly  held  to  be  erroneous,  unless  done  with  the  con- 
sent of  the  parties.  Whether  the  information  given  by  the  justice  was 
material,  or  had  any  influence  upon  the  verdict  of  the  jury,  is  a  matter 
which  we  will  not  inquire  into." 

In  Loan  Co.  v.  Mix,  51  N.  Y.  558,  it  was  held  that  a  party  to  an 
action  on  trial  by  a  jury  is  entitled  to  have  all  the  proceedings  public, 
both  in  respect  to  the  production  of  proof  and  to  the  instructions  to 
the  jury  by  the  court,  and  there  ought  to  be  no  communication  be- 
tween the  judge  and  the  jury  after  the  latter  have  gone  from  the  bar 
to  consider  their  verdict;  that  this  right  is  a  substantial  one,  and  is 
not  in  the  discretion  of  the  court ;  and  a  party  moving  for  a  new  trial 
upon  this  ground  is  not  bound  to  show  affirmatively  that  such  com- 
munication tended  to  his  injury. 

So  much  for  the  authorities  bearing  upon  the  question.  As  we  have 
seen,  the  justice  is  charged  with  having  read  to  the  jury  the  informa- 
tion upon  which  the  warrant  was  issued.  The  appellant's  attorney 
states  that  he  was  so  informed  by  the  justice  and  one  of  the  jurymen. 
The  information  consisted  of  the  ex  parte  affidavits  taken  before  the 
justice.  It  was  certainly  improper,  and  might  well  have  tended  to 
prejudice  the  jury.  The  justice  admits  in  his  affidavit  that  he  opened 
the  information,  but  states  that  he  did  not  read  therefrom;  that  then 
he  answered  that  the  charge  was  petit  larceny. 

As  has  been  stated  in  the  cases,  his  recollection  might  not  be  accu- 
rate as  to  what  he  did  before  the  jury.  It  leaves  an  opportunity  for 
a  defeated  party  to  suspect  that  an  injustice  has  been  done  him,  and, 
in  the  language  of  one  of  the  learned  judges  to  which  we  have  refer- 
red :  "The  public  interest  requires  that  litigating  parties  should  have 
nothing  to  complain  of  or  suspect  in  the  administration  of  justice." 

Undoubtedly,  treating  the  affidavit  of  the  justice  as  a  part  of  his  re- 
turn, we  are  bound  by  his  statement  as  to  the  facts,  but,  as  we  have 
already  seen,  it  is  not  incumbent  upon  the  appellant  to  show  that  he 


268  TRIAL.  (Ch.  12 

has  been  prejudiced  in  order  to  entitle  him  to  a  new  trial.  The  judg- 
ment of  the  Court  of  Special  Sessions  and  of  the  Court  of  Sessions  of 
Ontario  county  appealed  from  should  be  reversed,  and  a  new  trial 
granted  in  the  Court  of  Sessions  of  that  county,  and  for  that  purpose 
the  proceedings  should  be  remitted  to  that  court.    All  concur. 


SECTION  6.— RESPECTIVE   PROVINCES  OF  COURT  AND 

JURY 


BEARD  V.  STATE. 

(Court  of  Appeals  of  Maryland,  1SS9.     71  Md.  275,  17  Atl.  1044,  4  L.  R.  A.  675, 
17  Am.  St.  Rep.  536.) 

Alvey,  C.  J.^®  The  traverser  in  this  case  was  indicted  for  keeping 
a  disorderly  house,  and,  upon  trial  by  a  jury,  was  convicted  of  the  of- 
fense.    *     *     * 

We  come  now  to  the  third  exception,  and  the  questions  presented  by 
that  exception  are  whether  it  would  be  competent  to  the  judge  presid- 
ing at  the  trial  of  a  criminal  case  to  give  an  advisory  instruction  to  the 
jury,  when  requested  so  to  do,  and,  if  it  be  competent  so  to  instruct, 
whether  the  instruction  given  in  this  case  was  correct  or  not.  These 
questions  have  been  argued  by  counsel  with  much  zeal  and  ability, 
and  doubtless  they  are  of  great  importance  in  the  correct  and  faithful 
administration  of  the  criminal  law  of  the  state. 

It  appears  that,  after  the  case  had  been  fully  argued  to  the  jury  by 
counsel,  the  jury  retired  to  consider  of  their  verdict,  and,  after  being 
out  many  hours,  they  were  brought  into  court  and  questioned  as  to 
whether  they  had  agreed.  They  stated,  through  their  foreman,  that 
they  had  not  agreed  upon  a  verdict,  and  there  was  no  likelihood  of 
their  being  able  to  agree.  Whereupon  one  of  the  jurors  suggested 
that  he  thought  it  probable  that  a  verdict  could  be  had,  if  the  jury 
were  instructed  as  to  the  law  governing  the  case.  To  this  the  judge 
replied  that  he  would  instruct  the  jury,  if  they  unanimously  requested 
him  to  do  so ;  and  directed  the  foreman  to  ascertain  whether  it  was 
the  wish  of  all  the  jurors  that  they  should  be  instructed.  The  fore- 
man, after  consulting  the  panel,  announced  that  the  jury  were  unani- 

5  9  Part  of  this  case  is  omitted. 

"The  Coustitutiou  gives  to  juries  In  criminal  cases  the  right  to  determine 
the  law  as  well  as  the  facts.  It  does  not.  however,  give  them  the  right  to  dis- 
regard the  law.  To  aid  them  in  correctly  determining  the  law,  it  is  made 
the  duty  of  the  court  to  instruct  them.  They  have  no  more  right  in  determin- 
ing the  law,  to  disregard  and  ignore  the  court's  instructions  arbitrarily  and 
without  cause  than  to  disregard  and  ignore  the  evidence,  and  determine  the 
facts  arbitrarily  and  without  cause."  McBride,  J.,  in  Blaker  v.  State,  130 
Ind.  204,  29  ^^  E.  1078  (1891). 


Cb.  12)  TRIAL.  2G9 

mous  in  their  desire  to  be  instructed  as  to  the  law.  But  the  counsel 
for  the  traverser  objected,  and  earnestly  protested  against  such  in- 
struction being-  given,  and  insisted  that  the  jury  were  the  exclusive 
judges  of  the  law  as  well  as  of  the  fact  in  criminal  cases,  and  therefore 
the  court  ought  not  to  interfere. 

However,  the  court,  notwithstanding  the  protest  of  the  counsel,  re- 
duced to  writing  and  read  to  the  jury  the  following  instruction:  "If 
you  find  from  the  evidence  that  the  traverser  kept  a  bar-room  and 
dance-hall,  with  music,  for  the  purpose  and  with  the  intent  of  bring- 
ing together  and  entertaining  prostitutes,  and  men  desirous  of  their 
company,  and  that  such  persons  habitually  assembled  there  to  drink 
and  dance  together,  then  you  may  find  said  establishment  a  disorderly 
house,  within  the  meaning  of  the  indictment,  even  although  you  may 
also  believe  that  the  house  was  quietly  kept,  and  no  conspicuous  im- 
proprieties were  permitted  inside.  The  jury  being  the  judges  of  the 
law  as  well  as  fact,  this  charge  is  to  be  understood  as  advisory  only 
of  what  the  law  is." 

In  the  first  place,  it  is  argued  that  the  judge  had  no  right  to  give 
the  instruction  against  the  protest  of  the  traverser ;  and,  in  the  second 
place,  that  the  instruction  was  erroneous  in  principle,  and  not  within 
the  terms  of  the  indictment,  and  therefore  mi<;lo?irling  in  its  effect  upon 
the  jury. 

1.  The  Constitution  of  the  state  (article  15,  §  5)  is  very  explicit  in 
declaring  that  "in  the  trial  of  all  criminal  cases  the  jury  shall  be  the 
judges  of  law  as  well  as  of  fact."  But  it  has  been  held  by  our  predeces- 
sors that  this  provision  of  the  Constitution  is  merely  declaratory,  and 
did  not  alter  the  pre-existing  law  regulating  the  powers  of  the  court 
and  jury  in  the  trial  of  criminal  cases.  Franklin  v.  State,  12  I\Id.  236. 
Both  before  and  since  the  constitutional  declaration  upon  the  subject, 
it  was  and  has  been  the  practice  of  judges  in  some  parts  of  the  state 
to  decline  to  give  instructions  to  the  jury  in  criminal  cases  under  any 
circumstances,  while  in  other  parts  of  the  state  it  has  been  the  prac- 
tice for  the  judges  to  give  advisory  instructions,  when  requested  so 
to  do.  It  seems  to  have  been  regarded  as  entirely  a  matter  of  discre- 
tion with  the  judge,  there  being  no  positive  duty  requiring  him  to  pur- 
sue the  one  course  or  the  other.  Whenever,  however,  the  judge  has 
thought  it  proper  to  instruct,  it  has  always  been  deemed  necessary  that 
he  should  be  careful  to  put  the  instruction  in  an  advisory  form,  so  that 
the  jury  be  left  entirely  free  to  find  their  verdict  in  accordance  with 
their  own  judgment  of  the  law  as  well  as  the  facts.  The  instruction, 
when  given,  goes  to  the  jury  simply  as  a  means  of  enlightenment,  and 
not  as  a  binding  and  positive  rule  for  their  government,  as  it  does  in 
civil  cases. 

The  judge,  therefore,  cannot,  by  any  instruction  given  in  a  criminal 
case,  bind  the  jury  as  to  the  definition  of  the  crime,  or  as  to  the  legal 
efifect  of  the  evidence  before  them.  He  can  only  bind  and  conclude  the 
jury  as  to  what  evidence  shall  be  considered  by  them,  he  being  the  ex- 


270  TRIAL.  (Ch.  12 

elusive  judge  of  what  facts  or  circumstances  are  admissible  for  con- 
sideration. The  practice  of  instructing  the  jury,  within  the  limitations 
and  under  the  restrictions  just  stated,  has  received  the  sanction  of  this 
court  upon  more  than  one  occasion,  and  such  practice  mvist  now  be  re- 
garded as  fully  authorized.  Wheeler  v.  State,  43  Md.  563,  569  ;  Broil 
V.  State,  45  Md.  356;  Bloomer  v.  State,  48  Md.  521,  538;  Forwood 
v.  State,  49  Md.  537;   Swann  v.  State,  64  Md.  425,  1  Atl.  872. 

And  such  practice  is  founded  in  the  soundest  practical  reason  and 
good  sense;  for  though  the  juries  are  made  judges  of  the  law,  they 
are  unlearned,  and  are  not  infrequently  composed,  in  part,  at  least,  of 
persons  wholly  uninstructed  as  to  the  laws  under  which  they  live. 
When  sworn  upon  the  panel,  it  becomes  their  duty  to  decide  the  case 
according  to  the  established  rules  of  law  of  the  state,  and  not  accord- 
ing to  any  capricious  rules  of  their  own;  and  it  must  be  supposed  that 
they  are  always  desirous  of  performing  their  duty,  and  making  their 
verdicts  conform  to  law.  To  enable  them  to  accomplish  that  object, 
no  proper  light  should  be  withheld  from  them.  In  the  alrgument  of 
the  case  before  them  by  counsel,  text-books,  no  matter  of  what  au- 
thority, or  whether  of  any  authority  at  all,  reported  decisions  of  all 
grades  of  courts,  from  the  highest  to  the  lowest,  and  no  matter  where 
made,  are  read  to  the  jury,  with  the  glossary  of  counsel,  to  enforce 
certain  theories ;  and  the  jury  are  required  to  discriminate  and  decide, 
upon  the  authorities  cited,  as  to  what  is  the  law  in  their  own  state 
which  they  are  sworn  to  administer. 

In  such  state  of  doubt  and  perplexity,  is  it  not  reasonable  and  proper 
that  they  should  have  the  advisory  aid  of  the  judge  who  is  supposed 
to  know  what  the  law  of  the  state  really  is,  and  who  has  the  ultimate 
power  of  revising  and  setting  aside  their  verdict,  if  they  should  mis- 
take and  misapply  the  law  to  the  injury  of  the  accused?  It  would 
seem  that  there  could  be  no  room  for  a  diversity  of  opinion  upon  this 
question,  and  no  case  could  more  fully  illustrate  the  propriety  of  the 
practice  than  the  present.  If  the  instruction  given  be  erroneous, 
though  in  a  mere  advisory  form,  it  may  be  made  the  subject  of  an  ex- 
ception, to  be  corrected  on  appeal.     Swann  v.  State,  supra.     *     *     * 

Finding  no  error  in  the  rulings  of  the  court  below,  those  rulings 
will  be  afhrmed,  and  the  cause  remanded. 


COMMONWEALTH  v.  McMANUS. 
(Supreme  Court  of  Pennsylvania,  3801.     14.3  Pa.  04,  21  Atl.  1018,  22  Atl.  761.) 

Mitchell,  J.®"  I  concur  in  affirming  this  judgment,  and  in  the  rea- 
sons given ;  but  upon  one  point  I  would  go  further,  and  put  an  end, 
once  for  all,  to  a  doctrine  that  I  regard  as  unsound  in  every  point  of 
view — historical,  logical,  or  technical.     The  prisoner  at  the  trial  re- 

«o  Part  of  this  case  is  omitted. 


Cb.  12}  TRIAL.  271 

quested  the  judge  to  charge  the  jury  that  they  were  "judges  of  the 
law  as  well  as  of  the  facts."  The  learned  judge,  feeling  himself  bound 
by  the  language  of  Kane  v.  Com.,  89  Pa.  522,  33  Am.  Rep.  787  an- 
swered that  the  jury  had  been  sworn  to  decide  the  case  on  the  law  and 
the  evidence ;  that  the  statement  of  the  law  by  the  court  was  the  best 
evidence  of  the  law  within  the  jury's  reach;  and  that  therefore,  in 
view  of  that  evidence,  and  viewing  it  as  evidence  only,  the  jury  was 
to  be  guided  by  what  the  court  had  said  with  reference  to  the  law. 

The  point  should,  in  my  opinion,  have  been  answered  with  an  un- 
qualified negative.  The  jury  are  not  judges  of  the  law  in  any  case, 
civil  or  criminal.  Neither  at  common  law  nor  under  the  Constitution 
of  Pennsylvania  is  the  determination  of  the  law  any  part  of  their  duty 
or  their  right.  The  notion  is  of  modern  growth,  and  arises  undoubt- 
edly from  a  perversion  of  the  history  and  results  of  the  celebrated  con- 
test over  the  right  to  return  a  general  verdict,  especially  in  cases  of 
libel,  which  ended  in  Fox's  Bill,  32  Geo.  Ill,  c.  60.  In  the  earlv  days 
of  jury  trials,  issues  that  went  to  the  country  were  usually  simple,  and 
were  probably  submitted  to  the  jury  without  much  separation  of  lav^- 
and  fact  by  the  judge,  and  in  that  sense  juries  decided  the  law.  But 
the  distinction  betw^een  questions  of  law  and  fact,  and  the  tribunals 
for  their  decision,  respectively,  lies  at  the  foundation  of  our  juridical 
system,  and  there  was  no  time  when  it  did  not  exist. 

The  rule,  "ad  questionem  facti  non  respondent  judices,  ad  questionem 
juris  non  respondent  juratores,"  was  an  ancient  maxim  in  the  days  of 
Coke  (Co.  Litt.  155a;  Altham's  Case,  8  Coke,  155a;  Bowman's  Case, 
9  Coke,  13a) ;  and  Mr.  Bigelow,  treating  of  the  class  of  cases  raising 
questions  of  law  or  some  question  of  fact  properly  belonging  to  the 
court  to  decide,  quotes  the  case  of  Archbishop  of  Canterbury  v.  Abbot 
of  Battle  Abbey,  1  Rotul.  143,  temp.  Steph.,  which  "turned  upon  a 
question  of  law,  and  was  decided  (without  appointment  of  a  trial  term) 
just  as  a  modern  case  of  the  kind  would  be  decided,  by  a  submission 
of  the  point  of  law  in  the  question  to  the  determination  of  the  court, 
and  not  to  some  test  imposed  by  the  parties."  History  of  Procedure 
in  England  during  the  Norman  Period,  by  M.  M.  Bigelow,  p.  286. 

Nor  was  there  any  distinction,  in  respect  to  the  merely  incidental 
way  in  which  juries  passed  upon  matters  of  law,  between  civil  and 
criminal  cases.  They  might  return  a  general  or  a  special  verdict  in 
either,  but  they  early  sought  to  escape  the  obligation  of  giving  a  gen- 
eral verdict,  because  it  subjected  them  to  the  risk  of  an  attaint;  and 
Coke  says:  "Some  justices  did  rule  over  the  recognitors  to  give  a  pre- 
cise or  direct  verdict,  without  finding  the  special  matter."  2  Inst.  422. 
To  relieve  juries  from  the  burden  the  statute  of  Westminster  II,  c. 
30,  enacted,  "Quod  justiciarii  ad  assisas  capiendo  assignati,  non  com- 
pellant  juratores  dicere  pra^cise  si  sit  disseisina  vel  non,  dummodo 
dicere  volunerint  veritatem  facti  et  petere  auxilium  justic ;"  and,  com- 
menting upon  this  section.  Coke  says:  "In  the  end  it  hath  been  re- 
solved that  in  all  actions,  real,  personal,  and  mixed,  and  upon  all  is- 


272  TRIAL.  (Ch.  12 

sues  joined,  general  or  special,  the  jury  might  find  the  matter  of  fact 
pertinent,  *  *  *  and  thereupon  pray  the  discretion  of  the  court 
for  the  law;  and  this  the  jurors  might  do  at  the  common  law,  not  only 
in  cases  between  party  and  party  whereof  this  act  putteth  an  exam- 
ple of  the  assise,  but  also  in  pleas  of  the  crown."    2  Inst.  435. 

It  is  a  striking  illustration  of  the  uniformity  of  human  motives  at 
all  periods,  that,  while  the  attaint  remained  as  a  remedy  for  perversity 
or  favoritism,  the  struggle  of  juries  was  to  escape  the  obligation  of 
general  verdicts,  and  to  maintain  the  right  of  special  findings  of  fact ; 
but,  when  the  decline  and  final  disuse  of  the  attaint  rendered  them 
practically  irresponsible,  the  struggle  was  reversed,  and  juries  asserted 
stoutly  the  right  to  give  general  verdicts,  while  the  tendency  of  law- 
yers and  judges  was  to  confine  them  to  special  findings  of  fact,  and  to 
have  the  court  pronounce  the  result  as  a  matter  of  law.  The  period  of 
transition  was  long,  and  changes  slow.  It  was  clearly  and  justly  felt 
that  juries  as  judges  of  the  law,  in  any  but  an  incidental  way,  were 
an  anomaly  in  the  system,  and  perhaps  those  who  endeavored  to  do 
away  with  it  claimed  too  much.  Safety  was  thought  to  reside  in  the 
retention  by  juries  of  the  right  to  give  general  verdicts.  In  view  of 
the  constant  and  notorious  failure  of  justice  in  certain  classes  of  cases, 
by  the  occasional  perversity  and  the  frequent  cowardice  of  juries,  it 
may  be  doubted  whether  it  would  not  have  produced  better  results  to 
have  enlarged  the  power  of  judges  to  compel  special  verdicts. 

But,  however  this  may  be,  the  right  of  juries  to  give  general  ver- 
dicts, especially  in  criminal  cases,  has  been  maintained,  and  the  last 
contest  made  on  it  was  in  regard  to  libel.  The  exact  line  between  law 
and  fact,  not  always  easy  to  draw,  presented  in  the  case  of  libel  some 
special  difficulties,  technical  and  other.  The  alleged  libel  being  in  writ- 
ing, its  terms  were  not  in  dispute,  and  naturally  fell  to  the  court  to  pass 
upon,  as  other  writings  did ;  and  the  intent,  libelous  or  otherwise,  be- 
ing claimed  as  a  legal  inference,  there  was  nothing  left  in  dispute  but 
the  fact  of  publication  and  the  truth  of  the  innuendo.  Accordingly 
the  juries  in  Dean  of  St.  Asaph's  Case,  3  Term  R.  428,  note,  and  King 
V.  Withers,  Id.,  were  confined  to  these  two  points ;  and  it  was  to  coun- 
teract these  rulings  of  Buller  and  Mansfield  and  Kenyon,  (though  it 
cannot  be  disputed  that  they  were  in  accordance  with  long-settled  prac- 
tice,) and  to  secure,  in  libel  as  in  other  cases,  the  right  of  the  jury  to 
find  a  general  verdict  upon  the  whole  matter  in  issue,  that  the  act  of 
32  Geo,  III,  c.  60,  was  passed. 

The  text  of  that  famous  statute  is  worth  quoting  to  show  how  little 
foundation  it  affords  for  the  superstructure  that  is  sought  to  be  built 
upon  it.  It  is  entitled  "An  act  to  remove  doubts  respecting  the  func- 
tions of  juries  in  cases  of  libel,"  and  its  language  is :  "Whereas,  doubts 
have  arisen  whether  on  the  trial  of  an  indictment  *  *  *  fQj.  ^j^g 
making  or  publishing  any  libel,  where  an  issue  is  joined  *  *  *  q^ 
the  plea  of  not  guilty  pleaded,  it  be  competent  to  the  jury  impaneled 
to  try  the  same  to  give  their  verdict  upon  the  whole  matter  in  issue. 


Cb.  12)  TRIAL.  273 

be  it  therefore  declared  *  *  *  that,  on  every  such  trial,  the  jury 
sworn  to  try  the  issue  may  give  a  general  verdict  of  guilty  or  not  guilty 
upon  the  whole  matter  put  in  issue  upon  such  indictment  or  informa- 
tion; and  shall  not  be  required  or  directed  by  the  court  or  judge  be- 
fore whom  such  indictment  or  information  shall  be  tried  to  find  the 
defendant  or  defendants  guilty,  merely  on  the  proof  of  the  publica- 
tion by  such  defendant  or  defendants  of  the  paper  charged  to  be  a 
libel,  and  of  the  sense  ascribed  to  the  same  in  such  indictment  or  in- 
formation: Provided,  always,  that,  on  every  such  trial,  the  court  or 
judge  before  whom  such  indictment  or  information  shall  be  tried  shall, 
according  to  their  or  his  discretion,  give  their  or  his  opinion  and  di- 
rections to  the  jury  on  the  matter  in  issue  between  the  king  and  the 
defendant  or  defendants,  in  like  manner  as  in  other  criminal  cases : 
Provided,  also,  that  nothing  herein  contained  shall  extend,  or  be  con- 
strued to  extend,  to  prevent  the  jury  from  finding  a  special  verdict, 
in  their  discretion,  as  in  other  criminal  cases :  Provided,  also,  that  in 
case  the  jury  shall  find  the  defendant  or  defendants  guilty,  it  shall  and 
may  be  lawful  for  the  said  defendant  or  defendants  to  move  in  arrest 
of  judgment,  on  such  ground  and  in  such  manner  as  by  law  he  or 
they  might  have  done  before  the  passing  of  this  act,  anything  herein 
contained  to  the  contrary  notwithstanding." 

Nothing  could  be  clearer  than  the  care  with  which  this  act  was  di- 
rected to  the  exact  point  in  controversy,  the  right  to  render  a  general 
verdict  of  guilty  or  not  guilty  upon  the  whole  issue  in  case  of  libel 
and  the  equal  care  with  which  the  right  of  the  court  to  pass  finally 
upon  the  questions  of  law  was  preserved  by  the  provisos  that  the  judge 
should  give  the  jury  his  "opinion  and  directions,"  and  that  a  verdict 
should  still  not  be  conclusive  of  the  law  against  a  defendant,  but  he 
should  have  his  right  to  an  arrest  of  judgment,  as  theretofore  enjoyed. 
The  claim  that  juries  were  to  be  judges  of  the  law  was  thus  intention- 
ally and  carefully  excluded. 

The  Constitution  of  Pennsylvania  was  made  in  1790,  two  years  be- 
fore Fox's  libel  act.  The  controversy  was  then  at  its  height,  and  the 
subject  commanded  popular  attention.  In  fact,  Pennsylvania  had 
borne  rather  a  distinguished  part  in  the  discussion,  and  the  speech  of 
Andrew  Hamilton  in  the  trial  of  John  Peter  Zenger  was  regarded  as 
the  vindication  of  popular  rights,  and  not  only  quoted  as  such  by  Ers- 
kine,  but  referred  to,  among  other  authorities,  by  Hargrave.  Co.  Litt. 
155b.  "No  lawyer,"  says  Mr.  Binney,  "can  read  that  argument  with- 
out perceiving  that  while  it  was  a  spirited  and  vigorous,  though  rather 
overbearing,  harangue,  which  carried  the  jury  away  from  the  instruc- 
tion of  the  court,  and  from  the  established  law  of  both  the  colony  and 
the  mother  country,  he  argued  elaborately  what  was  not  law  anywhere 
with  the  same  confidence  as  he  did  the  better  points  of  his  case.  It  is, 
however,  worth  remembering,  and  to  his  honor,  that  he  was  half  a 
century  before  Mr.  Erskine,  and  the  declaratory  act  of  Mr.  Fox,  in 
Mik.Ck.Pb.— 18 


274  TRIAL.  (CL.  12 

asserting  the  right  of  the  jury  to  give  a  general  verdict  in  libel  as 
much  as  in  murder."    Leaders  of  the  Old  Bar  of  Philadelphia,  p.  15. 

The  members  of  our  convention  of  1790  were  familiar  with  the  sub- 
ject, and  the  minutes  show  that  much  care  was  given  to  framing  the 
clause  in  the  declaration  of  rights  which  refers  to  it.  Section  7  of 
article  9,  relating  to  liberty  of  the  press,  was  originally  reported  to  the 
convention  by  the  committee  to  draft  a  proposed  constitution,  on  De- 
cember 21,  1789,  in  the  following  form:  "That  the  printing  presses 
shall  be  free  to  every  person  who  undertakes  to  examine  the  proceed- 
ing of  the  Legislature,  or  any  branch  of  government,  and  no  law  shall 
ever  be  made  restraining  the  right  thereof.  The  free  communication 
of  thoughts  and  opinions  is  one  of  the  most  invaluable  rights  of  men, 
and  every  citizen  may  freely  speak,  write,  and  print,  being  responsi- 
ble for  the  abuse  of  that  liberty."  Proceedings  of  Convention,  p.  162 
(Harrisburg,  1825).  This  was  reported  from  committee  of  the  whole 
on  February  5,  1790,  in  the  same  form  (dropping  only  the  word  "most" 
before  the  word  "invaluable"),  but  with  the  addition :  "But  upon  in- 
dictments for  the  publication  of  papers  investigating  the  conduct  of 
individuals  in  their  public  capacity,  or  of  those  applying  or  canvassing 
for  office,  the  truth  of  the  facts  may  be  given  in  evidence  in  justifica- 
tion upon  the  general  issue."  Id.  174.  On  February  22d,  this  sec- 
tion being  under  consideration,  Mr.  Addison  offered  as  a  substitute  for 
the  sentence  last  quoted:  "In  prosecutions  for  libels,  their  truth  or 
design  may  be  given  in  evidence  on  the  general  issue,  and  their  nature 
and  tendency,  whether  proper  for  public  information  or  only  for  pri- 
vate ridicule  or  malice,  be  determined  by  the  jury."  To  this  an  amend- 
ment offered  by  Mr.  McKean  to  add,  "under  the  directions  of  the 
court,  as  in  other  cases,"  was  adopted  almost  unanimously,  the  vote 
being  56  to  3 ;  but  the  substitute  itself  received  a  bare  majority,  32 
to  27,  the  strong  minority  being  in  favor  of  restricting  the  truth  as  a 
justification  to  cases  of  publications  upon  the  conduct  of  persons  in 
their  public  capacity  or  of  candidates  for  office.  Id.  220-222.  The 
convention,  having  ordered  the  proposed  Constitution  to  be  published 
for  the  consideration  of  the  citizens,  adjourned  on  February  26th  to 
the  following  August. 

On  reconvening,  the  instrument  was  again  taken  up  for  discussion, 
section  by  section,  and  the  minority  made  strenuous  further  efforts  to 
restrict  the  justification  to  cases  of  public  officers,  at  one  time  failing 
only  by  the  close  vote  of  30  to  32.  During  the  progress  of  the  debate, 
an  amendment  offered  by  Mr.  Lewis,  and  seconded  by  Mr.  McKean, 
that  "the  jury  shall  have  the  same  right  to  determine  the  law  and  the 
fact,  under  the  direction  of  the  court,  as  in  other  cases,"  was  carried, 
and  the  clause  finally  adopted  in  the  form :  "In  prosecutions  for  the 
publication  of  papers  investigating  the  official  conduct  of  officers  or 
men  in  a  public  capacity,  or  where  the  matter  published  is  necessary 
or  proper  for  public  information,  the  truth  thereof  may  be  given  in 
evidence;  and,  in  all  indictments  for  libels,  the  jury  shall  have  a  right 


Ch.  12)  TRIAL.  275 

to  determine  the  law  and  the  facts,  under  the  directions  of  the  court,  as 
in  other  cases."    Id.  274,  279. 

It  is  impossible  to  read  these  various  steps  in  the  formulation  of  our 
fundamental  law  without  seeing  that  there  was  never  at  any  time  the 
intention  to  make  or  to  consider  juries  as  in  any  sense  judges  of  the 
law.  No  such  possible  construction  seems  to  have  been  apprehended 
until  suggested  by  McKean,  and  the  practically  unanimous  vote  on 
his  motion  to  add,  "under  the  direction  of  the  court,  as  in  other  cases," 
shows  the  feeling  of  the  convention  on  this  subject.  McKean  was  at 
that  time  one  of  the  foremost  personages  of  the  commonwealth,  per- 
haps its  best-trained  lawyer.  He  had  studied  in  the  Temple,  and  was 
familiar  with  the  details  of  the  legal  controversy  between  Buller  and 
Mansfield  on  the  one  side,  and  Erskine  on  the  other,  before  Fox  took 
it  up  as  a  matter  of  politics ;  and  he  knew,  as  Lewis  and  Wilson  and 
Ross  and  Sitgreaves  and  Addison  and  Findley  and  other  leaders  of  the 
convention  knew,  that  the  contest  was  not  for  any  control  by  the  jury 
as  judges  of  the  law — even  Junius  hardly  ventured  to  put  his  denunci- 
ations of  Mansfield  in  that  form — but  for  the  right  of  applying  the 
law  to  the  facts,  and  pronouncing  the  result  by  a  general  verdict.  And 
such  was  the  understanding  of  the  convention,  as  it  was  of  Parliament 
two  years  later,  and  such  the  natural  meaning  of  the  language  on 
which  they  finally  settled  to  express  their  purpose. 

It  puts  beyond  question  the  right  to  return  a  general  verdict,  nothing 
more.  To  cut  the  sentence  in  two,  and  say  the  jury  are  "to  determine 
the  law,"  is  not  only  to  pervert  the  meaning,  but  to  nullify  the  other 
command,  that  they  are  to  determine  "under  the  direction  of  the 
court."  What  they  are  to  determine  is  "the  law  and  the  facts  as  in 
other  cases;"  that  is,  the  law  as  given  to  them  by  the  court,  and  the 
facts  as  shown  by  the  evidence.  They  are  bound  to  take  the  law  from 
the  court,  but,  so  taking  it,  they  have  the  right  to  apply  it  to  the  facts 
as  they  may  find  them  to  be  proved,  and  to  announce  the  result  of  the 
whole  by  a  general  verdict  of  guilty  or  not  guilty.  Any  other  con- 
struction would  be  totally  at  variance  with  the  fundamental  principles 
of  our  system  of  jurisprudence,  and  with  our  settled  and  uncontested 
practice.  It  has  never  been  claimed  that  the  jury  are  to  determine 
what  evidence  is  admissible  or  what  witness  competent,  yet,  if  they  are 
judges  of  the  law,  they  should  decide  these  often  most  important  law 
points  in  a  case.  So  as  to  the  sufficiency  of  an  indictment.  Again, 
the  jury  have  a  right  to  return  a  special  verdict,  even  in  a  criminal 
case.  Dowman's  Case,  9  Coke,  12b;  2  Inst.  425;  Hargrave's  note  to 
Co.  Litt.  155b. 

It  is  admitted  that  they  must  decide  the  facts,  and,  if  they  are  judges 
of  the  law,  then  it  is  their  duty  to  decide  it,  and  they  cannot  transfer 
that  duty  to  the  court.  The  prisoner  might  demand  his  right  that  they 
should  exercise  their  full  functions.  But  all  the  authorities  are  to  the 
contrary,  and,  if  the  finding  of  facts  can  be  separated  from  the  con- 
clusion of  law,. the  latter  will  be  decided  by  the  judges  by  their  own 


276  TRIAL.  (Ch.  12 

views.  "When  a  jury  find  the  matter  committed  to  their  charge  at 
large,  and  further  conclude  against  law,  the  verdict  is  good,  and  the 
conclusion  ill."  Heydon's  Case,  4  Coke,  42b.  "The  office  of  twelve 
men  is  no  other  than  to  inquire  of  matters  of  fact,  and  not  to  adjudge 
what  the  law  is,  for  that  is  the  office  of  the  court,  and  not  of  the  jury; 
and  if  they  find  the  matter  of  fact  at  large,  and  further  say  that  there- 
upon the  law  is  so,  where  in  truth  the  law  is  not  so,  the  judges  shall 
adjudge  according  to  the  matter  of  fact,  and  not  according  to  the  con- 
clusion of  the  jury."  Townsend's  Case,  1  Plowd.  114b.  And  see  2 
Hale,  P.  C.  302 ;   1  Chit.  Crim.  Law,  645. 

Much  misunderstanding  has,  in  my  judgment,  been  caused  in  this 
state  by  the  case  of  Kane  v.  Com.,  89  Pa.  522,  33  Am.  Rep.  787.  In 
that  case  the  point  was  put  to  the  court  below  that  "the  jury  are  the 
judges  of  the  law  and  the  fact,"  and  all  that  this  court  decided  was 
that  the  point  should  have  been  affirmed.  The  language  of  Chief  Jus- 
tice Sharswood  was,  however,  less  guarded  than  was  usual  with  that 
eminent  jurist;  and,  following  State  v.  Croteau,  23  Vt.  14,  54  Am. 
Dec.  90,  he  dismisses  the  perfectly  clear  and  substantial  distinction  be- 
tween "power"  and  "right"  with  a  brevity  that  is  scarcely  consistent 
with  the  weight  of  the  subject.  "The  distinction  between  'power'  and 
'right,'  "  he  says,  "whatever  may  be  its  value  in  ethics,  in  law  is  very 
shadowy  and  unsubstantial.  He  who  has  legal  power  to  do  anything 
has  the  legal  right.  No  court  should  give  a  binding  instruction  to  a 
jury  which  they  are  powerless  to  enforce  by  granting  a  new  trial  if  it 
should  be  disregarded." 

It  is  somewhat  remarkable  that  the  Chief  Justice  should  assume,  as 
is  so  commonly  done  by  counsel,  that  the  jury  will  construe  the  law 
more  favorably  for  the  prisoner  than  the  court  would.  It  is  only  such 
a  construction,  too  favorable  to  the  prisoner,  that  the  court  is  power- 
less to  remedy  by  a  new  trial ;  and  that  lack  of  power  arises,  not  be- 
cause the  jury's  legal  power  is  the  same  as  a  legal  right,  but  because, 
for  reasons  of  general  policy,  one  verdict  of  acquittal  is  a  final  and 
irreversible  termination  of  the  case.  If  legal  power  means  legal  right, 
then  a  jury  has  a  right  to  acquit  any  prisoner  without  regard  to  either 
law  or  evidence ;  for  their  power  to  do  so  is  beyond  question,  and  they 
cannot  be  held  to  any  accountability,  though  they  follow  the  maxim  of 
lynch  law — that  the  murdered  man  deserved  to  die  anyhow,  and  there- 
fore his  murderer  should  not  be  punished,  even  though  he  no  longer 
seeks  refuge  behind  the  thin  veil  of  transitory  insanity  that  began  when 
the  shot  was  fired,  and  ended  when  it  had  killed  its  man. 

Whether  the  distinction  between  power  and  right  be  shadowy  and 
unsubstantial  in  practice  or  not,  it  is  clear  and  vital,  and  I  must  repu- 
diate such  a  confusion  of  logical  as  well  as  moral  ideas.  A  jury  may 
disregard  the  evidence,  but  no  judge  has  ever  said  it  had  the  legal 
right  to  do  so,  and,  if  the  disregard  is  of  the  weight  of  the  evidence  fa- 
vorable to  the  prisoner,  the  court  sets  aside  the  verdict  without  hesi- 
tation; and  even  this  court,  though  it  does  not  pass  upon  the  weight 


Cll.  12)  TRIAL.  277 

of  evidence,  does  examine  its  sufficiency,  and  may  on  that  ground  re- 
verse without  a  new  venire.  Com.  v.  Flemmg,  130  Pa.  iGo,  18  Atl. 
622,  5  L.  R.  A.  470,  17  Am.  St.  Rep.  763 ;  Com.  v.  Knarr,  135  Pa. 
47,  19  Atl.  805;  Com.  v.  Railroad  Co.,  135  Pa.  256,  19  Atl.  1051; 
Com.  v.  Brown,  138  Pa.  452,  21  Atl.  17 ;  Com.  v.  Ruddle,  142  Pa.  144, 
21  Atl.  814 — are  a  few  recent  instances  of  the  exercise  of  this  power. 
So  the  jury  may  disregard  the  law  favorable  to  the  prisoner.  As 
was  suggested  by  the  learned  judge  at  the  trial  of  the  case  in  hand, 
the  jury  had  the  legal  power  to  find  murder  of  the  first  degree,  with- 
out regard  to  the  element  of  premeditation;  but  no  judge  would  con- 
tend that  they  had  the  legal  right  to  do  so,  and,  if  the  evidence  of  pre- 
meditation was  below  the  legal  standard  determined  by  the  court  as 
matter  of  law,  not  only  would  the  trial  court  set  aside  the  verdict,  but 
this  court  would  be  bound  to  review  the  evidence,  and  determine  if  the 
legal  elements  of  murder  of  the  first  degree  existed  in  the  case.  Such 
powers  and  such  duties  in  the  courts  are  absolutely  inconsistent  with 
the  right  of  the  jury  to  be  in  any  sense  judges  of  the  law. 

This  is  not  new  doctrine,  but  the  long-established  law  of  the  state. 
Alexander  Addison  was  one  of  the  staunchest  asserters  of  the  rights 
of  juries  in  the  constitutional  convention,  and  was  one  of  the  minority 
of  three  who  voted  against  McKean's  amendment  to  insert  the  words, 
"under  the  direction  of  the  court,  as  in  other  cases ;"  but  when,  three 
years  later,  he  presided  in  the  oyer  and  terminer  of  Washington  coun- 
ty, he  laid  down  the  law  in  these  precise  and  forcible  terms :  "Whether 
the  facts  are  so  or  so,  it  lies  with  you  to  determine,  according  as  you 
believe  the  testimony.  Supposing  them  so  or  so,  whether  they  amount 
to  murder  or  manslaughter  is  a  question  of  law  for  the  court  to  de- 
termine. You  may  find  according  as  you  believe  or  disbelieve  the 
facts ;  and,  comparing  the  facts  with  the  rules  of  law,  that  the  prisoner 
is  guilty  or  not  guilty  [of  murder],  or  guilty  of  manslaughter,  or  you 
may  find  the  facts  specially,  without  drawing  any  conclusion  of  guilt 
or  innocence,  leaving  it  to  the  court  to  pronounce  the  construction 
which  the  law  puts  on  the  facts  found ;  but  you  cannot,  but  at  the 
peril  of  violation  of  duty,  believing  the  facts,  say  that  they  are  not 
what  the  law  declares  them  to  be,  for  this  would  be  taking  upon  you 
to  make  the  law,  which  is  the  province  of  the  legislature,  or  to  con- 
strue the  law,  which  is  the  province  of  the  court."  Pennsylvania  .v. 
Bell,  Add.  160,  1  Am.  Dec.  298. 

And  in  Sherry's  Case,  an  indictment  for  murder  growing  out  of  the 
riots  of  1844,  removed  by  certiorari  from  the  quarter  sessions  of  Phil- 
adelphia, and  tried  in  the  nisi  prius  in  April,  1845,  Justice  Rogers 
charged  the  jury  as  follows:  "You  are,  it  is  true,  judges,  in  a  criminal 
case,  in  one  sense,  of  both  law  and  fact ;  for  your  verdict,  as  in  civil 
cases,  must  pass  on  law  and  fact  together.  If  you  acquit,  you  inter- 
pose a  final  bar  to  a  second  prosecution.  *  *  *  The  popular  im- 
pression is  that  this  power  *  *  *  arises  from  a  right  on  the  jury's 
part  to  decide  the  law,  as  well  as  the  facts,  according  to  their  own 


278  TRIAL.  (Ch.  12 

sense  of  right.  But  it  arises  from  no  such  thing.  It  rests  upon  a  fund- 
amental prmciple  of  the  common  law  that  no  man  can  twice  be  put  in 
jeopardy  for  the  same  offense.  *  *  *  It  is  important  for  you  to 
keep  this  distinction  in  mind,  remembering  that,  while  you  have  the 
physical  power  by  an  acquittal  to  discharge  a  defendant  from  further 
prosecution,  you  have  no  moral  power  to  do  so  against  the  law  laid 
down  by  the  court.  The  sanctity  of  your  conclusions  in  case  of  an 
acquittal  arises,  not  from  any  inherent  dominion  on  your  part  over  the 
law,  but  from  the  principle  that  no  man  shall  be  twice  put  in  jeopardy 
for  the  same  offense — a  principle  that  attaches  equal  sanctity  to  an 
acquittal  produced  by  a  blunder  of  the  clerk  or  an  error  of  the  attorney 
general.  *  *  *  You  will  see  from  these  considerations  the  great 
importance  of  the  preservation,  in  criminal  as  well  as  in  civil  cases, 
of  the  maxim  that  the  law  belongs  to  the  court,  and  the  facts  to  the 
jury.  My  duty  is  therefore  to  charge  you  that,  while  you  will  in  this 
case  form  your  own  judgment  of  the  facts,  you  will  receive  the  law 
as  it  is  given  to  you  by  the  court."    Whart.  Hom.  Append.  721. 

To  the  same  eft'ect,  though  less  explicitly  developed,  are  the  rulings 
by  Sergeant,  ].,  of  this  court,  in  Com.  v.  Van  Sickle,  Brightly,  N.  P. 
73 ;  and  by  Gibson,  C.  J.,  in  Com.  v.  Ilarman,  4  Pa.  269.  And  this, 
also,  seems  to  have  been  the  later  and  better  considered  opinion  of 
Judge  Baldwin,  whose  charge  in  U.  S.  v.  Wilson,  Baldw.  99,  is  com- 
monly quoted  as  authority  on  the  other  side.  See  his  charge  in  U.  S. 
V.  Shive,  Baldw.  512,  Fed.  Cas.  No.  16,278. 

I  do  not  understand  that  the  case  of  Kane  v.  Com.  was  intended  to 
overrule  or  conflict  with  these  decisions,  and,  notwithstanding  the  lati- 
tude of  the  language  of  the  opinion,  the  real  point  decided  did  not  go 
beyond  the  affirmation  of  the  right  to  an  instruction  that  "the  jury  are 
the  judges  of  the  law  and  the  facts."  In  the  present  case  it  will  be  ob- 
served that  the  instruction  asked  was  that  the  jury  are  "judges  of  the 
law  as  well  as  of  the  fact" ;  that  is,  of  each,  not  merely  of  the  joint  re- 
sult of  both.  For  myself,  I  think  even  the  formula  that  the  jury  are 
judges  of  the  law  and  the  facts  objectionable,  as  tending  to  convey  to 
the  jury  a  wrong  idea.  The  language  of  the  Constitution  is  that  the 
jury  shall  have  the  right  to  determine  the  law  and  the  facts  under  the 
direction  of  the  court.  This  is  the  accurate  formula,  and  it  means  only 
that  they  have  the  right  to  determine  the  joint  result  of  the  law  and 
the  facts  by  a  general  verdict.  This  is  the  form  which  ought  to  be 
used  when  instruction  on  the  subject  is  asked,  and  it  ought  to  be  ac- 
companied by  explicit  instruction  that  the  jury  are  not  judges  of  the 
law,  in  all  cases  where  there  is  any  apparent  danger  that  the  jury  will 
arrogate  to  themselves  such  function. 

My  conclusions  on  the  general  subject,  therefore,  are:  (1)  That  the 
jury  never  were  judges  of  the  law  in  any  case,  civil  or  criminal,  ex- 
cept incidentally,  as  involved  in  the  mixed  determination  of  law  and 
fact  by  a  general  verdict.  (2)  Even  if  it  could  be  conceded  that  they 
may  have  been  so  in  primitive  times,  their  right  certainly  ceased  after 


Ch.  12)  TRIAL.  279 

the  introduction  of  bills  of  exception  and  the  granting  of  new  trials, 
and  admittedly  has  not  existed  in  civil  cases  for  centuries.  (3)  That 
there  was  not  originally,  nor  is  now,  any  distinction  in  this  respect  be- 
tween civil  and  criminal  cases,  the  true  rule  as  to  both  being  that  "the 
immediate  and  direct  right  of  deciding  upon  questions  of  law  is  in- 
trusted to  the  judges;  in  a  jury  it  is  only  incidental,"  Hargrave's  note 
to  Co.  Litt.  155b. 

The  idea  of  a  difference  in  the  rights  and  functions  of  juries  in  civil 
and  criminal  cases,  as  to  the  determination  of  the  law,  arose  from  a 
misconception  of  the  controversy  over  the  right  to  give  a  general  ver- 
dict, and  was  an  error  for  which  there  is  no  respectable  English  au- 
thority, and  which  the  best  American  authorities  have  overwhelmingly 
disapproved.  And,  even  if  the  jury  had  originally  had  such  right  «i 
criminal  cases,  it  was  an  anomaly,  belonging  to  the  period  when  jurors 
were  selected  from  the  vicinage  because  of  their  knowledge  of  the 
case,  and,  like  its  congener,  has  changed  and  disappeared,  because  to- 
tally inconsistent  with  the  functions  of  courts  and  juries,  as  now  un- 
derstood, with  sound  reason,  and  with  common  sense.  And  such 
change,  if  change  it  be,  has  the  sanction  of  the  constitutional  provi- 
sion that  the  jury  shall  determine,  "under  the  direction  of  the  court," 
of  the  legislative  provisions  for  bills  of  exception,  the  review  of  the 
evidence  in  cases  of  murder,  etc.,  and  of  the  long-settled  and  incon- 
testable power  of  courts  to  decide  questions  of  evidence,  to  set  aside 
verdicts  and  grant  new  trials  without  limit,  except  when  controlled  by 
the  ancient  maxim  of  the  common  law,  embodied  in  our  constitutional 
declaration  of  rights,  that  no  man  shall  be  twice  vexed  for  the  same 
offense. 

This  whole  subject  is  discussed  with  exhaustive  learning  and  ability 
in  State  v.  Croteau,  23  Vt.  14,  54  Am.  Dec.  90.  The  opinion  of  the 
court  by  Hall,  J.,  is  the  only  serious  attempt  that  I  have  been  able  to 
find  to  support  the  dogma  for  which  it  is  now  mainly  responsible,  and, 
with  great  respect  for  that  eminent  jurist,  it  appears  to  me  that  his 
whole  argument  is  based  on  the  confusion  of  the  right  to  determine 
the  law  with  the  right  to  render  a  general  verdict.  A  careful  examina- 
tion of  all  the  authorities  cited  by  him  (and  they  include  everything 
which  the  most  learned  and  diligent  research  could  discover)  shows 
that  they  only  go  so  far  as  to  sustain  the  right  of  the  jury  not  to  be 
judges  of  or  to  determine  the  law,  but  only  to  apply  it  through  a  gen- 
eral verdict.  The  dissenting  opinion  of  Bennett,  J.,  in  the  same  case. 
displays  equal  learning  and  sounder  reasoning.  It  is  a  storehouse  of 
information  on  the  sul:»ject,  and  has  anticipated  everything  that  can 
be  said  upon  it.  A  masterly  analysis  and  review  by  Chief  Justice  Shaw 
will  also  be  found  in  Com.  v.  Anthes,  5  Gray  (Mass.)  185. 

There  are  less  elaborate,  but  equally  clear  and  forcible,  statements  of 
the  argument  by  Story,  J.,  in  U.  S.  v.  Battiste,  2  Sumn.  240,  Fed. 
Cas.  No.  14,545 ;  by  B.  R.  Curtis,  J.,  in  U.  S.  v.  IMorris.  1  Curt.  23, 
49,  Fed.  Cas.  No.  i5,S15 ;   by  Gilchrist,  J.,  in  Pierce  v.  State,  13  N. 


280  TRIAL.  (Ch.  12 

H.  536 ;  and  by  Shaw,  C.  ].,  in  Com.  v.  Porter,  10  Mete.  (Mass.)  263. 
See,  also,  Montgomery  v.  State,  11  Ohio,  427 ;  Montee  v.  Com.,  3  J.  J. 
Marsh.  (Ky.)  149;  Townsend  v.  State,  2  Blackf.  (Ind.)  151  (but  see 
Armstrong  v.  State,  4  Blackf.  [Ind.]  247) ;  Pierson  v.  State,  12  Ala. 
153 ;  Hardy  v.  State,  7  Mo.  607 ;  Nels  v.  State,  2  Tex.  280 ;  Brown  v. 
Com.  (1890)  86  Va.  466,  10  S.  E.  745;  a  very  able  and  compendious 
statement  of  the  controversy  in  England  while  still  raging,  before  the 
passage  of  the  hbel  act,  by  Mr.  Hargrave  in  his  note  to  Co.  Litt.  155b; 
an  article  by  Chief  Justice  Wade,  of  Montana,  in  3  Crim.  Law  Mag. 
484 ;  and  one  by  the  late  Dr.  Francis  Wharton  in  5  South.  Law.  Rev. 
(N.  S.)  352  (reprinted  in  36  Leg.  Int.  405  and  1  Crim.  Law  Mag.  47); 
7  Dane,  Abr.  381-383 ;  2  Law  Rep.  187 ;  15  Law  Rep.  1 ;  and  State 
V.  Buckley,  13  Am.  Law  Reg.  (N.  S.)  355. 

As  already  said,  there  is  not  a  single  respectable  English  authority 
for  the  doctrine  in  question,  and  against  the  foregoing  solid  phalanx 
of  the  best  American  judicial  and  professional  opinion  I  have  not  been 
able  to  find  a  single  well-considered  case,  except  State  v.  Croteau, 
which,  as  already  seen,  was  by  a  divided  court.  Under  these  circum- 
stances, whether  the  doctrine  be  of  much  practical  importance  or  not, 
I  cannot  help  thinking  it  a  matter  of  regret  that  any  vestige  of  it 
should  be  left  in  Pennsylvania.®^ 


SECTION  7.— EVIDENCE 


In  this  stage  of  the  investigation  it  may  be  material  for  the  prose- 
cutor to  know  what  parts  of  his  indictment  it  will  be  necessary  for  him 
to  substantiate  with  evidence.  It  is  now  settled  that  he  must  prove 
every  statement  which  enters  into  the  substance  of  the  charge,  but  he 
will  not  be  compelled  to  maintain  any  averments  which,  without  being 
repugnant,  are  merely  formal  or  superfluous.     *     *     * 

The  common  law  did  not,  according  to  the  stronger  opinions,  require 
any  particular  number  of  witnesses,  or  weight  of  other  proofs,  to  con- 
vict a  man  of  a  particular  offense,  but  left  it  altogether  to  the  force 
of  conviction  as  depending  upon  a  variety  of  circumstances,  far  too 
diversified  and  subtle  to  be   reduced  within  any  precise  boundaries. 

No  one  ought  to  be  convicted,  before  a  felony  is  known  to  have  been 
actually  committed ;  so  that  no  man  should  be  found  guilty  of  murder 
before  the  death  of  the  party  is  actually  ascertained,  nor  of  stealing 
goods,  unless  the  owner  is  known,  merely  because  he  cannot  give  an 

61  See  also.  State  v.  Burpee,  G5  Vt.  1,  25  Atl.  9G4,  10  L.  R.  A.  H.'j.  36  Am. 
St.  Rep.  775  (1892) ;  Sparf  v.  U.  S.,  156  U.  S.  51,  15  Sup.  Ct.  273,  39  L.  Ed. 
343  (1894) ;    Roesel  v.  State,  62  N.  J.  Law,  216,  41  Atl.  408  (1S98). 


Ch.  12)  TRIAL.  281 

account  in  what  way  they  came  into  his  possession.  But  the  circum- 
stance that  individuals  have  occasionally  suffered  on  presumptive  testi- 
mony, whose  innocence  has  been  afterwards  ascertained,  ought  not  to 
prevent  juries  from  attending,  with  caution  and  deliberation,  to  this 
species  of  evidence ;  for  the  evil  is  comparatively  small  to  that  general 
impunity,  which  the  worst  offenders  might  obtain,  if  this  kind  of  proof 
were  never  to  be  regarded.     *     *     * 

In  general,  however,  it  lies  upon  the  prosecutor  to  prove  the  af- 
firmative of  the  issue,  and  not  on  the  prisoner  to  establish  his  inno- 
cence.    *     *     * 

The  most  usual  mode  of  compelling  the  attendance  of  witnesses  for 
the  prosecution  is  by  binding  them  over  in  a  recognizance  to  appear 
and  give  evidence  at  the  time  of  the  examination  before  a  magis- 
trate.    *     *     * 

In  prosecutions  for  misdemeanors  the  defendant  has  been  from  the 
earliest  times  allowed  the  writ  of  subpoena.  But  prisoners  had  no 
right,  by  the  common  law,  to  this  compui«:'"'"v  process  in  capital  cases 
without  a  special  order  of  the  court  for  that  purpose.  By  7  Wm.  Ill, 
c.  3,  §  7,  in  all  cases  of  treason  within  that  act,  it  is  enacted  that 
defendants  "shall  have  the  like  process  of  the  court  to  compel  their 
witnesses  to  appear  for  them,  as  is  usually  granted  to  compel  witnesses 
to  appear  against  them,"  so  that  the  defendant  may  have  a  subpoena, 
or  a  habeas  corpus,  to  bring  up  a  witness  who  is  a  prisoner. 

1  Chitty,  Cr.  Law,  c.  14. 


TYNDAL'S  CASE. 

(Court  of  King's  Bench,  1G32.     Cro.  Car.  291.) 

Note,  That  the  first  day  of  this  Term  Hopestill  Tyndal  was  ar- 
raigned at  the  bar  for  buggery,  supposed  to  be  committed  at  Hithe. 
being  one  of  the  Cinque  Ports,  he  being  indicted  there,  and  the  record 
removed  hither  by  certiorari  directed  to  "The  Mayor  and  the  Jurats" 
of  the  said  vill,  and  not  to  "The  Lord  Warden  of  the  Cinque  Ports." 

The  prisoner  challenged  one  of  the  jurors,  being  the  foreman,  who 
was  sworn,  and  marked  sworn  by  the  clerk,  before  the  challenge  was 
heard  by  the  court ;  and  therefore  without  the  assent  of  the  Attorney 
General,  then  present,  they  would  not  alter  the  record ;  and  because 
he  would  not  assent  to  alter  the  record,  the  challenge  was  disallowed. 

And  afterwards,  upon  the  evidence  at  the  bar,  divers  witnesses  were 
produced  by  the  defendant,  which  were  heard  without  oath  ;  but  some 
of  them  witnessing  matter  which  the  attorney  general  conceived  would 
make  for  the  king,  were  upon  the  desire  of  the  said  attorney  sworn, 
and  after  ordered  upon  their  said  oath  to  deliver  their  knowledge. 

The  prisoner  was  afterwards  acquitted :  but  because  the  evidence 
(if  it  had  been  believed  by  the  jury)  was  very  strong  against  the  pris- 


282  TRIAL.  (Ch.  12 

oner,  Richardson,  Chief  Justice,  and  Jones  appointed,  that  the  pris- 
oner should  be  bound  to  his  good  behaviour ;  whereupon,  against  the 
opinion  of  myself  and  Justice  Berkley,  he  was  so  bound. "^^ 


REX  V.  THOMAS. 
(Court  of  King's  Bench,  1613.    2  Bulst.  147.) 

In  an  indictment  against  Walter  Thomas  for  the  killing  of  one 
George  Conard  tried  at  the  Barre,  by  a  Jury  of  Middlesex. 

Coke,  Chief  Justice.  This  tryal  here  is  publick,  ut  pcena  ad  paucos, 
metus  ad  omnes  perveneret,  the  Jesuites  have  much  slandered  our 
Common  Law,  in  the  case  of  trialls  of  offenders  for  their  lives,  in  the 
manner  of  their  triall,  in  regard  that  Counsell,  and  also  Examination 
of  Witnesses  upon  Oath,  is  had,  and  admitted  against  a  Delinquent: 
but  a  Delinquent  to  have  no  Counsell  to  speak  for  him,  nor  to  have 
any  Examination  of  Witnesses,  upon  Oath  against  him :  in  answer 
unto  this.  The  Law  of  England,  is  a  Law  of  Mercy ;  the  Judge,  before 
whom  the  triall  is,  is  to  look  unto  the  Indictment,  and  to  see,  that  the 
same  be  sound,  and  good  in  point  of  Law,  the  Judge  ought  to  be  for 
the  King,  and  also  for  the  party  indifferent ;  and  it  is  far  better  for  a 
Prisoner  to  have  a  Judges  opinion  for  him,  than  many  Counsellors  at 
the  Barre ;  the  Judges  to  have  a  speciall  care  of  the  Indictment,  and  to 
see  that  the'  same  be  good  in  all  respects ;  and  that  Justice  be  done  to 
the  party.     *     *     '^^^ 


PEOPLE  V.  COURTNEY. 

(Court  of  Appeals  of  New  York,  1884.     94  N.  T.  490.) 

The  indictment  charged,  in  substance,  that  defendant,  on  the  trial 
of  an  indictment  against  him  for  forgery,  testified  in  his  own  behalf, 
and  gave  material  testimony ;  that  in  answer  to  questions  put  to  him 
on  cross-examination,  he  falsely  testified  that  he  never  went  by  any 
other  name  than  that  of  Edward  J.  Courtney,  that  he  never  was  an 

62  By  1  Anne,  St.  2,  c.  9,  it  was  enacted  that  in  all  cases  of  treason  and 
felony  all  witnesses  for  the  prisoner  should  be  examined  upon  oath,  in  like 
manner  as  the  witnesses  against  him.  This  right  always  existed  in  regard 
to  mferior  crimes.    See  1  Chitty,  Cr.  Law,  c.  14. 

6  3  Part  of  this  case  is  omitted. 

"To  say  the  truth,  we  never  read  in  any  act  of  Parliament,  ancient  author, 
book,  case,  or  record,  that  in  criminal  cases  tlie  party  accused  should  not  have 
Avitnesses  sworn  for  him ;  and  therefore  there  is  not  so  much  as  scintilla 
juris  against  it.  And  I  well  rememher  when  the  Lord  Treasurer  Burleigh 
told  Queen  Elizabeth,  'Madam,  here  is  your  Attorney-General'  (I  being  sent 
for)  Qui  pro  Domina  Regina  sequitnr ;  she  said,  she  would  have  the  form  of 
the  records  altered,  for  it  should  be  Attornatus  Generalis  qui  pro  Domina 
veritate  sequitur.  And  when  the  fault  is  denied,  truth  cannot  appear  without 
witnesses."    3  Coke,  lust.  79. 


Ch.  12)  TRIAL.  283 

inmate  of  the  Eastern  Penitentiary  of  Pennsylvania,  and  that  he  never 
served  a  term  of  imprisonment  in  any  prison.  Defendant  demurred 
to  the  indictment  on  the  ground  "that  the  facts  stated  in  the  indict- 
ment do  not  constitute  a  crime."     The  demurrer  was  disallowed. 

On  the  trial,  after  proving  the  giving  of  the  testimony  as  set  forth 
In  the  indictment,  the  prosecution  proved  that  defendant  had  been 
convicted  and  sentenced  to  imprisonment  for  three  years  in  the  East- 
ern Penitentiary  of  Pennsylvania,  under  the  name  of  Christopher  Rich- 
ards, and  that  he  served  his  term  in  that  penitentiary.  At  the  close 
of  the  evidence,  defendant's  counsel  asked  the  court  to  direct  an  ac- 
quittal, upon  the  ground  that  the  alleged  false  statements  "were  im- 
material, irrelevant  and  in  no  way  affecting  the  issue,  and  not  the 
subject  of  an  indictment."    The  court  denied  the  request. 

Andrews,  J.***  The  argument  in  support  of  the  demurrer  to 
the  indictment  rests  upon  three  propositions :  First,  that  by  section  G, 
art.  1,  of  the  Constitution,  no  person  can  be  compelled  in  a  criminal 
case  to  be  a  witness  against  himself;  second,  that  the  act  (chapter 
GTS  of  the  Laws  of  18G9)  violates  this  constitutional  provision;  and, 
third,  that  false  swearing  on  the  trial  of  an  indictment,  by  the  party 
indicted,  on  his  examination,  under  the  act  of  1869,  is  not,  therefore, 
legal  perjury. 

Whether  the  conclusion  is  a  logical  or  legal  deduction  from  the 
premises  need  not  be  considered,  for  the  reason  that  the  minor  premise 
is  not  well  founded.  The  act  of  1869  is  permissive,  and  not  compul- 
sory. It  permits  a  person  charged  with  crime  to  be  a  witness  in  his 
own  behalf.  But  it  does  not  compel  him  to  testify,  nor  does  it  permit 
the  prosecution  to  call  him  as  a  witness.  He  can  be  sworn  only  at  his 
election,  and  the  statute  declares  that  his  omission  or  refusal  to  testify 
shall  create  no  presumption  against  him.  The  policy  of  the  act  of 
1869  has  been  criticised  in  some  cases  in  this  court.  But  the  policy 
or  propriety  of  a  law  is  a  legislative,  and  not  a  judicial,  question. 
The  supposed  moral  coercion  upon  a  person  accused  of  crime  to 
offer  himself  as  a  witness  by  reason  of  the  adverse  inference  which 
might  be  drawn  from  his  omission  to  testify,  when  presumably  all  the 
facts  are  known  to  iiim,  is  not  compulsion  within  the  meaning  of  the 
Constitution. 

The  Constitution  primarily  refers  to  compulsion  exercised  through 
the  process  of  the  courts,  or  through  laws  acting  directly  upon  the  par- 
ty, and  has  no  reference  to  an  indirect  and  argumentative  pressure  such 
as  is  claimed  is  exerted  by  the  statute  of  1869.  A  law  which,  while 
permitting  a  person  accused  of  crime  to  be  a  witness  in  his  own  behalf, 
should  at  the  same  time  authorize  a  presumption  of  guilt  from  his 
omission  to  testify,  would  be  a  law  adjudging  guilt  without  evidence, 
and,  while  it  might  not  be  obnoxious  to  the  constitutional  provision 
against  compelling  a  party  in  a  criminal  case  to  be  a  witness  against 

64  The  arguments  of  coui^sel  are  omitted. 


284  TRIAL.  (Cb.  12 

himself,  would  be  a  law  reversing  the  presumption  of  innocence,  and 
would  violate  fundamental  principles,  binding  alike  upon  the  Legis- 
lature and  the  courts.  The  act  of  1869  expressly  precludes  such  a 
presumption  from  the  silence  of  the  accused,  and,  while  it  may  be 
difficult  for  a  jury  in  many  cases  to  exclude  the  inference  of  guilt  from 
an  omission  of  a  defendant  to  be  sworn,  we  cannot  assume  that  it  may 
not  be  done.  The  statute  assumes  it  to  be  possible,  and  we  cannot 
say,  judicially,  that  such  assumption  is  unfounded.  The  demurrer 
was,  therefore,  properly  overruled. 

The  only  remaining  question  worthy  of  notice  arises  on  the  motion 
of  the  prisoner's  counsel  on  the  trial  that  the  court  should  direct  an 
acquittal  on  the  ground  that  the  matters  on  which  the  perjury  was 
assigned  were  immaterial.  It  is  true  that  the  false  testimony  did  not 
bear  directly  upon  the  main  issue  on  the  trial  for  forgery,  but  only 
upon  the  credit  of  the  witness  who  gave  material  evidence  on  the 
merits.  Evidence  going  to  the  credit  of  a  witness  who  has  given 
material  evidence  is  relevant,  because  it  helps  the  jury  in  determin- 
ing the  main  issue.  The  recent  cases  sustain  the  view  that  perjury  may 
be  assigned  upon  false  testimony,  going  to  the  credit  of  a  witness. 
Reg.  v.  Glover,  9  Cox's  Crim.  Cas.  501 ;  Reg.  v.  Lavey,  3  C.  &  K. 
26 ;  Arch.  Crim.  Pr.  817.  False  swearing  in  respect  to  such  matter 
is  not  distinguishable  in  respect  to  moral  turpitude  from  false  swear- 
ing upon  the  merits,  and,  we  think,  there  is  no  just  reason  for  refus- 
ing to  treat  false  swearing  as  perjury  whenever  the  testimony  is 
relevant  to  the  case,  although  it  may  not  directly  bear  upon  the  issue 
to  be  found.  The  questions  are  carefully  considered  in  the  opinions  at 
General  Term,  and  further  elaboration  is  unnecessary. 

The  judgment  should  be  affirmed.    All  concur. 

Judgment  affirmed. 


COTTON  V.  STATE. 

(Supreme  Court  of  Alabama,  1889.     87  Ala.  103,  6  South.  .372.) 

SoMERViLivE,  J.  °®  Where  a  defendant  in  a  criminal  prosecution  elects 
to  become  a  witness  in  his  own  behalf,  as  he  may  do  under  the  statute, 
he  waives  the  constitutional  guaranty  which  protects  him  from  an- 
swering questions  touching  the  merits  of  the  case  which  may  tend  to 
criminate  him.  He  may  be  examined  by  the  state  as  to  all  material 
facts  pertinent  to  his  guilt,  and  his  failure  to  explain  or  rebut  any 
criminating  fact,  where  he  reasonably  can  do  so,  is  a  circumstance 
which  may  be  considered  by  the  jury  as  prejudicial  to  his  innocence. 
This  being  so,  it  is  clear  in  reason  that  his  silence  or  refusal  to  testify 
as  to  such  fact  may  become  the  subject  of  legitimate  criticism  on  the 
part  of  the  state's  counsel,  just  as  the  testimony  of  any  other  witness 

6  5  Part  of  this  case  Is  omitted. 


Ch.  12)  TRIAL.  285 

may  be  under  like  circumstances;  and  the  guilt  or  innocence  of  the 
defendant  is  to  be  determined  on  the  entire  evidence,  including  the 
testimony  of  the  defendant  himself.  The  authorities  fully  sustain  this 
view.  Clarke  v.  State,  87  Ala.  71,  6  South.  368,  decided  at  the  present 
term;  Stover  v.  People,  56  N.  Y.  315;  State  v.  White,  27  Am.  Rep. 
137,  note  144;  Whart.  Crim.  Ev.  (9th  Ed.)  §§  432,  433;  Clarke  v. 
State,  78  Ala.  474,  56  Am.  Rep.  45. 

It  is  only  where  the  defendant  fails  to  become  a  witness  at  all,  or  to 
request  to  become  one,  that  section  4473  of  the  Code  aflfords  him  any 
protection  against  the  criticism  of  counsel.  In  such  event,  his  failure 
to  become  a  witness  is  not  allowed  to  create  any  unfavorable  presump- 
tion against  him,  nor  to  be  the  subject  of  any  comment  by  counsel. 
Cr.  Code  1886,  §  4473. 

The  charge  requested  by  the  defendant  was  based  on  the  false  idea 
that  nothing  the  defendant  said,  or  failed  to  say,  of  a  criminative 
character,  should  be  allowed  to  have  any  weight  whatever  with  the  jury 
in  securing  his  conviction ;  and  erroneously  affirmed  that  they  should 
acquit  him,  unless  they  were  satisfied  beyond  a  reasonable  doubt  of 
his  guilt  by  other  evidence  in  the  case,  irrespective  of  his  own  testi- 
mony on  the  stand,  including  any  implied  admission  of  guilt.  The 
charge  was  palpably  erroneous,  and  was  properly  refused. 

Affirmed.  ^^ 


BURDEN  OF  PROOF. 

If  the  jurors  are  in  doubt  of  the  matter  and  not  certain,  the  judg- 
ment ought  always  in  such  case  to  be  for  the  defendant. 
Britton  (Nichols'  Trans.)  27. 


COFFIN  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1894.     156  U.  S.  432,  15  Sup.  Ct.  394. 

39  L.  Ed.  4S1.) 

Mr.  Justice  White.  ®^  *  *  *  The  forty-fourth  charge  asked 
and  refused  was  as  follows :  "The  law  presumes  that  persons  charged 
with  crime  are  innocent  until  they  are  proven,  by  competent  evi- 
dence, to  be  guilty.    To  the  benefit  of  this  presumption  the  defendants 

66  Act  61  &  62  Viet.  c.  36.  allows  the  accused  to  lie  a  -witness  for  hinisolf 
under  oath  The  act  forbids  counsel  to  comment  on  the  prisoner's  failure 
to  take  advantage  of  the  privilege,  hut  no  such  restriction  is  placed  on  the 
iudge  Previous  to  this  act,  and  after  1875,  the  accused  was  allowed  in  trnils 
for  certain  crimes  to  testify  under  oath.  Such  statutes  are  general  in  this 
country. 

6T  Part  of  this  case  is  omitted. 


286  TRIAL.  (Ch.  12 

are  all  entitled,  and  this  presumption  stands  as  their  sufficient  pro- 
tection, unless  it  has  been  removed  by  evidence  proving  their  guilt 
beyond  a  reasonable  doubt." 

Although  the  court  refused  to  give  this  charge,  it  yet  instructed 
the  jury  as  follows:  "Before  you  can  find  any  one  of  the  defend- 
ants guilty,  you  must  be  satisfied  of  his  guilt,  as  charged  in  some  of 
the  counts  of  the  indictment,  beyond  a  reasonable  doubt." 

And  again:  "You  may  find  the  defendants  guilty  on  all  the  counts 
of  the  indictment,  if  you  are  satisfied  that,  beyond  a  reasonable 
doubt,  the  evidence  justifies  it." 

And  finally,  stating  the  matter  more  fully,  it  said:  "To  justify 
3^ou  in  returning  a  verdict  of  'Guilty,'  the  evidence  must  be  of  such  a 
character  as  to  satisfy  your  judgment  to  the  exclusion  of  every  reason- 
able doubt.  If,  therefore,  you  can  reconcile  the  evidence  with  any 
reasonable  hypothesis  consistent  with  the  defendants'  innocence,  it  is 
your  duty  to  do  so,  and  in  that  case  find  the  defendants  not  guilty. 
And  if,  after  weighing  all  the  proofs,  and  looking  only  to  the  proofs, 
you  impartially  and  honestly  entertain  the  belief  that  the  defendants 
may  be  innocent  of  the  offenses  charged  against  them,  they  are  entitled 
to  the  benefit  of  that  doubt,  and  you  should  acquit  them.  It  is  not  meant 
by  this  that  the  proof  should  establish  their  guilt  to  an  absolute  cer- 
tainty, but  merely  that  you  should  not  convict  unless,  from  all  the 
evidence,  you  believe  the  defendants  are  guilty  beyond  a  reasonable 
doubt.  Speculative  notions,  or  possibilities  resting  upon  mere  con- 
jecture, not  arising  or  deducible  from  the  proof,  or  the  want  of  it, 
should  not  be  confounded  with  a  reasonable  doubt.  A  doubt  suggest- 
ed by  the  ingenuity  of  counsel,  or  by  your  own  ingenuity,  not  legiti- 
mately warranted  by  the  evidence,  or  the  want  of  it,  or  one  born  of  a 
merciful  inclination  to  permit  the  defendants  to  escape  the  penalty  of 
the  law,  or  one  prompted  by  sympathy  for  them  or  those  connected' 
with  them,  is  not  what  is  meant  by  a  reasonable  doubt.  A  'reasonable 
doubt,'  as  that  term  is  employed  in  the  administration  of  the  criminal 
law,  is  an  honest,  substantial  misgiving,  generated  by  the  proof,  or 
the  want  of  it.  It  is  such  a  state  of  the  proof  as  fails  to  convince  your 
judgment  and  conscience,  and  satisfy  your  reason  of  the  guilt  of  the 
accused.  If  the  whole  evidence,  when  carefully  examined,  weighed, 
compared,  and  considered,  produces  in  your  minds  a  settled  conviction 
or  belief  of  the  defendants'  guilt — such  an  abiding  conviction  as  you 
would  be  willing  to  act  upon  in  the  most  weighty  and  important  affairs 
of  your  own  life — you  may  be  said  to  be  free  from  any  reasonable 
doubt,  and  should  find  a  verdict  in  accordance  with  that  conviction  or 
belief." 

The  fact,  then,  is  that,  while  the  court  refused  to  instruct  as  to 
the  presumption  of  innocence,  it  instructed  fully  on  the  subject  of 
reasonable  doubt. 

The  principle  that  there  is  a  presumption  of  innocence  in  favor  of 
the  accused  is  the  undoubted  law,  axiomatic  and  elementary,  and  its 


Ch.  12)  TRIAL.  287 

enforcement  lies  at  the  foundation  of  the  administration  of  our  crim- 
inal law. 

It  is  stated  as  unquestioned  in  the  text-books,  and  has  been  referred 
to  as  a  matter  of  course  in  the  decisions  of  this  court  and  in  the  courts 
of  the  several  states.  See  1  Tayl.  Ev.  c.  5,  §§  1:.^G,  127;  Wills,  Circ. 
Ev.  c.  5,  §  91;  Best,  Pres.  pt.  2,  c.  1,  §§  6;?,  6-1;  Id.  c.  3,  §§  31-58; 
Greenl.  Ev.  pt.  5,  §  29,  etc. ;  11  Cr.  Law  Mag.  3 ;  Whart.  Ev.  §  1211 ; 
2  Phil.  Ev.  (Cowen  &  Hill's  Notes)  p.  289;  Lilienthal's  Tobacco  v. 
U.  S.,  97  U.  S.  237,  21  L.  Ed.  901 ;  Hopt  v.  Utah,  120  U.  S.  430,  7 
Sup.  Ct.  614,  30  L.  Ed.  708;  Com.  v.  Webster,  5  Cush.  (Mass.)  320, 
52  Am.  Dec.  711;  State  v.  Bartlett,  43  N.  H.  224,  80  Am.  Dec.  154; 
Alexander  v.  People,  96  111.  96;  People  v.  Fairchild,  48  Mich.  31,  11 
N.  W.  773 ;  People  v.  Millard,  53  Mich.  63,  18  N.  W.  562 ;  Com.  v. 
Whittaker,  131  Mass.  224;  Blake  v.  State,  3  Tex.  App.  581 ;  Wharton 
v.  State,  73  Ala.  366 ;  State  v.  Tibbetts,  35  Me.  81 ;  Moorer  v.  State, 
44  Ala.  15. 

Greenleaf  traces  this  presumption  to  Deuteronomy,  and  quotes  Mas- 
cardius  De  Probationibus  to  show  that  it  was  substantially  embodied 
in  the  laws  of  Sparta  and  Athens.  On  Evidence,  pt.  5,  §  29,  note. 
Whether  Greenleaf  is  correct  or  not  in  this  view,  there  can  be  no 
question  that  the  Roman  law  was  pervaded  with  the  results  of  this 
maxim  of  criminal  administration,  as  the  following  extracts  show : 

"Let  all  accusers  understand  that  they  are  not  to  prefer  charges 
unless  they  can  be  proven  by  proper  witnesses  or  by  conclusive  docu- 
ments, or  by  circumstantial  evidence  which  amounts  to  indubitable 
proof  and  is  clearer  than  day."    Code,  L.  4,  tit.  20,  1,  1.  25. 

"The  noble  (divus)  Trajan  wrote  to  Julius  Frontonus  that  no 
man  should  be  condemned  on  a  criminal  charge  in  his  absence,  be- 
cause it  was  better  to  let  the- crime  of  a  guilty  person  go  unpunished 
than  to  condemn  the  innocent."    Dig.  L.  48,  tit.  19,  1.  5. 

"In  all  cases  of  doubt  the  most  merciful  construction  of  facts  should 
be  preferred."    Dig.  L.  50,  tit.  17,  1.  56. 

"In  criminal  cases  the  milder  construction  shall  always  be  preserved." 
Dig.  L.  50,  tit.  17, 1.  155,  §  2. 

"In  cases  of  doubt  it  is  no  less  just  than  it  is  safe  to  adopt  the  niiUler 
construction."     Dig.  L.  50,  tit.  17,  1.  192,  §  1. 

Ammianus  Marcellinus  relates  an  anecdote  of  the  Emperor  Julian 
which  illustrates  the  enforcement  of  this  principle  in  the  Roman  law. 
Numerius,  the  governor  of  Narbonensis,  was  on  trial  before  the  em- 
peror, and,  contrary  to  the  usage  in  criminal  cases,  the  trial  was 
public.  Numerius  contented  himself  with  denying  his  guilt,  and  there 
was  not  sufficient  proof  against  him.  His  adversary,  Delphidius,  "a 
passionate  man,"  seeing  that  the  failure  of  the  accusation  was  in- 
evitable, could  not  restrain  himself,  and  exclaimed,  "Oh,  illustrious 
Caesar!  If  it  is  sufficient  to  deny,  what  hereafter  will  become  of  the 
guilty?  to  which  Julian  replied,  "If  it  suffices  to  accuse,  what  will  be- 
come of  the  innocent?"    Rerum  Gestarum,  lib.  18,  c.  1.  The  rule  thus 


288  TRIAL.  (Cll.  12 

found  ill  the  Roman  law  was,  along  with  many  other  fundamental  and 
humane  maxims  of  that  system,  preserved  for  mankind  by  the  canon 
law.  Decretum  Gratiani  de  Presumptionibus,  L.  2,  T.  23,  c.  14,  A. 
D.  1198;  Corpus  Juris  Canonici  ?Iispani  et  Indici,  R.  P.  Murillo 
Velarde,  Tom.  1,  L.  2,  n.  140. 

Exactly  when  this  presumption  was,  in  precise,  words,  stated  to  be  a 
part  of  the  common  law,  is  involved  in  doubt.  The  writer  of  an  able 
article  in  the  North  American  Review  (January,  1851),  tracing  the 
genesis  of  the  principle,  says  that  no  express  mention  of  the  presump- 
tion of  innocence  can  be  found  in  the  books  of  the  common  law  earlier 
than  the  date  of  McNally's  Evidence  (1802).  Whether  this  statement 
is  correct  is  a  matter  of  no  moment,  for  there  can  be  no  doubt  that, 
if  the  principle  had  not  found  formal  expression  in  the  common-law 
writers  at  an  earlier  date,  yet  the  practice  which  flowed  from  it  has 
existed  in  the  common  law  from  the  earliest  time. 

Fortescue  says:  "Who,  then,  in  England,  can  be  put  to  death  un- 
justly for  any  crime?  since  he  is  allowed  so  many  pleas  and  privileges 
in  favor  of  life.  None  but  his  neighbors,  men  of  honest  and  good 
repute,  against  whom  he  can  have  no  probable  cause  of  exception, 
can  find  the  person  accused  guilty.  Indeed,  one  would  much  rather 
that  twenty  guilty  persons  should  escape  punishment  of  death  than 
that  one  innocent  person  should  be  comdemned  and  suffer  capitally." 
De  Laudibus  Legum  Angliae  (Amos'  translation,  Cambridge,  1825). 

Lord  Hale  (1678)  says:  "In  some  cases  presumptive  evidence 
goes  far  to  prove  a  person  guilty,  though  there  be  no  express  proof 
of  the  fact  to  be  committed  by  him ;  but  then  it  must  be  very  warily 
pressed,  for  it  is  better  five  guilty  persons  should  escape  unpunished 
than  one  innocent  person  should  die."  2  Hale,  P.  C.  290.  He  further 
observes :  "And  thus  the  reasons  stand  on  both  sides  ;  and,  though 
these  seem  to  be  stronger  than  the  former,  yet  in  a  case  of  this  moment 
it  is  safest  to  hold  that  in  practice,  which  hath  least  doubt  and  danger — 
'Quod  dubitas,  ne  feceris.'  "    1  Hale,  P.  C.  24. 

Blackstone  (1753-1765)  maintains  that  "the  law  holds  that  it  is 
better  that  ten  guilty  persons  escape  than  that  one  innocent  suffer." 
2  Bl.  Comm.  c.  27,  marg.  p.  358,  ad  finem. 

How  fully  the  presumption  of  innocence  had  been  evolved  as  a 
principle  and  applied  at  common  law  is  shown  in  McKinley's  Case 
(1817)  33  State  Tr.  275,  506,  where  Lord  Gillies  says:  "It  is  impossible 
to  look  at  it  [a  treasonable  oath  which  it  was  alleged  that  McKinley 
had  taken]  without  suspecting,  and  thinking  it  probable,  it  imports  an 
obligation  to  commit  a  capital  crime.  That  has  been  and  is  my  impres- 
sion. But  the  presumption  in  favor  of  innocence  is  not  to  be  redargued 
by  mere  suspicion.  I  am  sorry  to  see,  in  this  information,  that  the 
public  prosecutor  treats  this  too  lightly.  He  seems  to  think  that  the 
law  entertains  no  such  presumption  of  innocence.  I  cannot  listen  to 
this.  I  conceive  that  this  presumption  is  to  be  found  in  every  code  of 
.law  which  has  reason  and  religion  and  humanity  for  a  foundation.    It 


Ch.  12)  TRIAL.  289 

is  a  maxim  which  ought  to  be  inscribed  in  indehble  characters  in  the 
heart  of  every  judge  and  juryman,  and  I  was  happy  to  hear  from  Lord 
Hermand  he  is  incHned  to  give  full  effect  to  it.  To  overturn  this,  there 
must  be  legal  evidence  of  guilt,  carrying  home  a  degree  of  conviction 
short  only  of  absolute  certainty." 

It  is  well  settled  that  there  is  no  error  in  refusing  to  give  a  correct 
charge  precisely  as  requested,  provided  the  instruction  actually  given 
fairly  covers  and  includes  the  instruction  asked.  Tweed's  Case,  16 
Wall.  504,  21  L.  Ed.  389 ;  Railway  Co.  v.  Whitton,  13  Wall.  270,  20 
L.  Ed.  571.  The  contention  here  is  that,  inasmuch  as  the  charge  given 
by  the  court  on  the  subject  of  reasonable  doubt  substantially  embodied 
the  statement  of  the  presumption  of  innocence,  therefore  the  court  was 
justified  in  refusing,  in  terms,  to  mention  the  latter.  This  presents  the 
question  whether  the  charge  that  there  cannot  be  a  conviction  unless 
the  proof  shows  guilt  beyond  a  reasonable  doubt  so  entirely  embodies 
the  statement  of  presumption  of  innocence  as  to  justify  the  court  in  re- 
fusing, when  requested,  to  inform  the  jury  concerning  the  latter.  The 
authorities  upon  this  question  are  few  and  unsatisfactory. 

In  Texas  it  has  been  held  that  it  is  the  duty  of  the  court  to  state 
the  presumption  of  innocence  along  with  the  doctrine  of  reasonable 
doubt,  even  though  no  request  be  made  to  do  so.  Black  v.  State,  1 
Tex.  App.  369 ;  Priesmuth  v.  State,  1  Tex.  App.  480 ;  McMullen  v. 
State,  5  Tex.  App.  577.  It  is  doubtful,  however,  whether  the  rulings 
in  these  cases  were  not  based  upon  the  terms  of  a  Texas  statute,  and 
not  on  the  general  law.  In  Indiana  it  has  been  held  error  to  refuse, 
upon  request,  to  charge  the  presumption  of  innocence,  even  although  it 
be  clearly  stated  to  the  jury  that  conviction  should  not  be  had  unless 
guilt  be  proven  beyond  a  reasonable  doubt.  Long  v.  State.  46  Ind.  582  ; 
Line  v.  State,  51  Ind.  175.  But  the  law  of  Indiana  contains  a  similar 
provision  to  that  of  Texas. 

In  two  Michigan  cases,  where  the  doctrine  of  reasonable  doubt  was 
fully  and  fairly  stated,  but  no  request  to  charge  the  presumption  of 
innocence  was  made,  it  was  held  that  the  failure  to  mention  the  pre- 
sumption of  innocence  could  not  be  assigned  for  error  in  the  reviewing 
court.  People  v.  Potter,  89  Mich.  353,  50  N.  W.  994;  People  v. 
Graney,  91  Mich.  648,  52  N.  W.  66.  But  in  the  same  state,  where  a 
request  to  charge  the  presumption  of  innocence  was  made  and  refused, 
the  refusal  was  held  erroneous,  although  the  doctrine  of  reasonable 
doubt  had  been  fully  given  to  the  jury.  People  v.  Macard,  73  Mich. 
15,  40  N.  W.  784.  On  the  other  hand,  in  Ohio  it  has  been  held  not 
error  to  refuse  to  charge  the  presumption  of  innocence  where  the 
charge  actually  given  was  "that  the  law  required  that  the  state  should 
prove  the  material  elements  of  the  crime  beyond  doubt."  Moorehead 
v.  State,  34  Ohio  St.  212. 

It  may  be  that  the  paucity  of  authority  upon  this  subject  results  from 
the  fact  that  the  presumption  of  innocence  is  so  elementary  that  in- 
Mik.Cb.Pr.— 19 


290  TRIAL.  (Ch.  12 

stances  of  denial  to  charge  it  upon  request  have  rarely  occurred.  Such 
is  the  view  expressed  in  a  careful  article  in  the  Criminal  Law  Maga- 
zine for  January,  1889  (volume  11,  p.  3):  "The  practice  of  stating  this 
principle  to  juries  is  so  nearly  universal  that  very  few  cases  are  found 
where  error  has  been  assigned  upon  the  failure  or  refusal  of  the 
judge  so  to  do."  But,  whatever  be  the  cause,  authorities  directly 
apposite  are  few  and  conflicting,  and  hence  furnish  no  decisive  solution 
of  the  question,  which  is  further  embarrassed  by  the  fact  that  in  some 
few  cases  the  presumption  of  innocence  and  the  doctrine  of  reasonable 
doubt  are  seemingly  treated  as  synonymous.  Ogletree  v.  State,  28 
Ala.  693 ;  Moorer  v.  State,  41  Ala.  15 ;  People  v.  Lenon,  79  Cal.  625, 
631,  21  Pac.  967.  In  these  cases,  however,  it  does  not  appear  that  any 
direct  question  was  made  as  to  whether  the  presumption  of  innocence 
and  reasonable  doubt  were  legally  equivalent;  the  language  used 
simply  implying  that  one  was  practically  the  same  as  the  other,  both 
having  been  stated  to  the  jury. 

Some  of  the  text-books,  also,  in  the  same  loose  way,  imply  the 
identity  of  the  two.  Stephen,  in  his  History  of  the  Criminal  Law, 
tells  us  that  "the  presumption  of  innocence  is  otherwise  stated  by 
saying  the  prisoner  is  entitled  to  the  benefit  of  every  reasonable 
doubt."  Volume  1,  p.  438.  So,  although  Best,  in  his  work  on  Pre- 
sumptions, has  fully  stated  the  presumption  of  innocence,  yet,  in  a 
note  to  Chamber] ayne's  edition  of  that  author's  work  on  Evidence 
(Boston,  1883 ;  page  304,  note  a),  it  is  asserted  that  no  such  presump- 
tion obtains,  and  that  "apparently  all  that  is  meant  by  the  statement 
thereof,  as  a  principle  of  law,  is  this:  If  a  man  be  accused  of  crime, 
he  must  be  proved  guilty  beyond  reasonable  doubt." 

This  confusion  makes  it  necessary  to  consider  the  distinction  between 
the  presumption  of  innocence  and  reasonable  doubt  as  if  it  were  an 
original  question.  In  order  to  determine  whether  the  two  are  the 
equivalents  of  each  other,  we  must  first  ascertain,  with  accuracy,  in 
what  each  consists.  Now,  the  presumption  of  innocence  is  a  conclusion 
drawn  by  the  law^  in  favor  of  the  citize«,  by  virtue  whereof,  when 
brought  to  trial  upon  a  criminal  charge,  he  must  be  acquitted,  unless 
he  is  proven  to  be  guilty.  In  other  words,  this  presumption  is  an  in- 
strument of  proof  created  by  the  law  in  favor  of  one  accused,  whereby 
his  innocence  is  established  until  sufficient  evidence  is  introduced  to 
overcome  the  proof  which  the  law  has  created.  This  presumption,  on 
the  one  hand,  supplemented  by  any  other  evidence  he  may  adduce, 
and  the  evidence  against  him,  on  the  other,  constitute  the  elements 
from  which  the  legal  conclusion  of  his  guilt  or  innocence  is  to  be 
drawn. 

Greenleaf  thus  states  the  doctrine :  "As  men  do  not  generally  violate 
the  Penal  Code,  the  law  presumes  every  man  innocent;  but  some  men 
do  transgress  it,  and  therefore  evidence  is  received  to  repel  this  pre- 
sumption.   This  legal  presumption  of  innocence  is  to  be  regarded  by 


Ch.  12)  TKIAL.  291 

the  jury,  in  every  case,  as  matter  of  evidence,  to  the  benefit  of  which 
the  party  is  entitled."    On  ]{vidcnce,  pt.  1,  §  ol. 

Wills  on  Circumstantial  Evidence  says:  "In  the  investigation  and 
estimate  of  criminatory  evidence,  there  is  an  antecedent,  prima  facie 
presumption  in  favor  of  the  innocence  of  the  party  accused,  grounded 
in  reason  and  justice  not  less  than  in  humanity,  and  recognized  in  the 
judicial  practice  of  all  civilized  nations,  which  presumption  must  prevail 
until  it  be  destroyed  by  such  an  overpowering  amount  of  legal  evidence 
of  guilt  as  is  calculated  to  produce  the  opposite  belief." 

Best  on  Presumptions  declares  the  presumption  of  innocence  to  be 
a  "presumptio  juris."  The  same  view  is  taken  in  the  article  in  the 
Criminal  Law  Magazine  for  January,  18S8,  to  which  we  have  already 
referred.  It  says :  "This  presumption  is  in  the  nature  of  evidence 
in  his  favor  [i.  e.  in  favor  of  the  accused],  and  a  knowledge  of  it 
should  be  communicated  to  the  jury.  Accordingly,  it  is  the  duty  of  the 
judge,  in  all  jurisdictions,  when  requested,  and  in  some  when  not 
requested,  to  explain  it  to  the  jury  in  his  charge.  The  usual  formula 
in  which  this  doctrine  is  expressed  is  that  every  man  is  presumed  to  be 
innocent  until  his  guilt  is  proved  beyond  a  reasonable  doubt.  The  ac- 
cused is  entitled,  if  he  so  requests  it,  *  *  *  to  have  this  rule  of 
law  expounded  to  the  jury  in  this  or  in  some  equivalent  form  of  ex- 
pression." 

The  fact  that  the  presumption  of  innocence  is  recognized  as  a  pre- 
sumption of  law,  and  is  characterized  by  the  civilians  as  a  presumptio 
juris,  demonstrates  that  it  is  evidence  in  favor  of  the  accused.  For, 
in  all  systems  of  law,  legal  presumptions  are  treated  as  evidence  giv- 
ing rise  to  resulting  proof,  to  the  full  extent  of  their  legal  efficacy. 

Concluding,  then,  that  the  presumption  of  innocence  is  evidence 
in  favor  of  the  accused,  introduced  by  the  law  in  his  behalf,  let  us 
consider  what  is  "reasonable  doubt."  It  is,  of  necessity,  the  condition 
of  mind  produced  by  the  proof  resulting  from  the  evidence  in  the  cause. 
It  is  the  result  of  the  proof,  not  the  proof  itself,  whereas  the  pre- 
sumption of  innocence  is  one  of  the  instruments  of  proof,  going  to 
bring  about  the  proof  from  which  reasonable  doubt  arises ;  thus  one 
is  a  cause,  the  other  an  effect.  To  say  that  the  one  is  the  equivalent  of 
the  other  is  therefore  to  say  that  legal  evidence  can  be  excluded  from 
the  jury,  and  that  such  exclusion  may  be  cured  by  instructing  them 
correctly  in  regard  to  the  method  by  which  they  are  required  to  reach 
their  conclusion  upon  the  proof  actually  before  them  ;  in  other  words, 
that  the  exclusion  of  an  important  element  of  proof  can  be  justified  by 
correctly  instructing  as  to  the  proof  admitted. 

The  evolution  of  the  principle  of  the  presumption  of  innocence,  and 
its  resultant,  the  doctrine  of  reasonable  doubt,  make  more  apparent 
the  correctness  of  these  views,  and  indicate  the  necessity  of  enforcing 
the  one  in  order  that  the  other  may  continue  to  exist.  While  Rome 
and  the  Aledi^valists  taught  that,  wherever  doubt  existed  in  a  crim- 
inal case,  acquittal  must  follow,  the  expounders  of  the  common  law, 


292  TRIAL.  (Ch.  12 

in  their  devotion  to  human  Hberty  and  individual  rights,  traced  this 
doctrine  of  doubt  to  its  true  origin — the  presumption  of  innocence — 
and  rested  it  upon  this  enduring  basis.  The  inevitable  tendency  to 
obscure  the  results  of  a  truth,  when  the  truth  itself  is  forgotten  or 
ignored,  admonishes  that  the  protection  of  so  vital  and  fundamental 
a  principle  as  the  presumption  of  innocence  be  not  denied,  when 
requested,  to  any  one  accused  of  crime. 

The  importance  of  the  distinction  between  the  two  is  peculiarly  em- 
phasized here,  for,  after  having  declined  to  instruct  the  jury  as  to  the 
presumption  of  innocence,  the  court  said:  "If,  after  weighing  all  the 
proofs,  and  looking  only  to  the  proofs,  you  impartially  and  honestly 
entertain  the  belief,"  etc.  Whether  thus  confining  them  to  "the 
proofs,"  and  only  to  the  proofs,  would  have  been  error,  if  the  jury  had 
been  instructed  that  the  presumption  of  innocence  was  a  part  of  the 
legal  proof,  need  not  be  considered,  since  it  is  clear  that  the  failure 
to  instruct  them  in  regard  to  it  excluded  from  their  minds  a  portion 
of  the  proof  created  by  law,  and  which  they  were  bound  to  consider. 
"The  proofs,  and  the  proofs  only,"  confined  them  to  those  matters 
which  were  admitted  to  their  consideration  by  the  court ;  and,  among 
these  elements  of  proof,  the  court  expressly  refused  to  include  the  pre- 
sumption of  innocence,  to  which  the  accused  was  entitled,  and  the 
benefit  whereof  both  the  court  and  the  jury  were  bound  to  extend  him. 

In  addition,  we  think  the  twenty-second  exception  to  the  rulings 
of  the  court  was  well  taken.  The  error  contained  in  the  charge,  which 
said  substantially,  that  the  burden  of  proof  had  shifted,  under  the  cir- 
cumstances of  the  case,  and  that  therefore,  it  was  incumbent  on  the  ac- 
cused to  show  the  lawfulness  of  their  acts,  was  not  merely  verbal, 
but  was  fundamental,  especially  when  considered  in  connection  with  the 
failure  to  state  the  presumption  of  innocence.     *     *     * 

Judgment  reversed  and  case  remanded,  with  directions  to  grant  a 
new  trial.  ®* 


PEOPLE  v.  POTTER. 

(Supreme  Court  of  Michigan,  1891.    89  Mich.  130,  50  N.  W.  994.) 

Champlin,  C.  J.®^  The  respondent  was  tried  upon  the  charge  of 
violating  what  is  known  as  the  "Liquor  Law."  *  *  *  We  have 
a  printed  record  containing  a  bill  of  exceptions,  but  we  are  not  fur- 
nished with  any  assignments  of  error,  nor  with  any  brief  on  behalf  of 
the  respondent.  We  have  examined  the  bill  of  exceptions,  and  find 
no  errors  contained  therein.  The  only  exceptions  to  the  charge  of 
the  court  about  which  anything  need  be  said  is  the  following:  "De- 
fendant, by  his  counsel,  also  then  and  there  excepted  to  said  charge, 

«8  See,  for  discussion  of  this  case,  Thayer,  Prelim.  Treat.   Ev.  551  et  seq. 
«9  Part  of  this  case  is  omitted. 


Ch.  12)  TRIAL.  293 

for  the  reason  that  said  circuit  judge  failed  therein  to  charge  tlie  jury 
that  the  respondent  was  presumed  innocent  until  proven  guilty."  It 
was  said  in  People  v.  Macard,  73  Mich.  25,  26,  40  N.  W.  784,  that  the 
court  should  have  charged  the  jury  that  the  respondent  was  presumed 
innocent  until  proved  guilty.  People  v.  Murray,  72  Mich.  10,  40  N. 
W.  29.  This  is  a  duty  which  the  court  owes  to  a  prisoner  at  tlie  bar 
charged  with  a  crime,  in  order  that  the  jury  may  fully  comprehend 
and  understand  that  this  presumption  of  innocence  adheres  until  it  is 
overcome  by  proof  beyond  a  reasonable  doubt  to  the  contrary. 

The  learned  Attorney  General  suggests  that  this  duty  does  not  apply 
to  mere  misdemeanors  where  intent  is  not  an  element  of  the  crime, 
and  where  it  has  been  held  not  to  be  error  for  the  court  to  direct  a  ver- 
dict for  conviction  against  the  prisoner ;  but  we  think  that  the  pre- 
sumption exists  in  all  cases  of  persons  charged  with  a  criminal  offense, 
whether  it  be  a  statutory  one,  or  one  recognized  as  an  offense  at  the 
common  law.  In  either  case,  without  some  proof  is  introduced  to 
overcome  the  presumption,  the  prisoner  would  be  entitled  to  a  verdict 
of  acquittal.  For  this  error  the  conviction  must  be  reversed,  and  a 
new  trial  had. 

McGrath,  Morse,  and  Long,  JJ.,  concurred. 

Grant,  J.  (dissenting).  *  *  *  fiig  charge  of  the  court  was 
fair  and  impartial.  He  instructed  them  that  the  "burden  of  proof  was 
on  the  people  to  establish  the  defendant's  guilt,  by  testimony  intro- 
duced in  court,  to  their  satisfaction  beyond  a  reasonable  doubt;"  an.' 
further  instructed  them  that  they  were  the  exclusive  judges  of  the 
facts.  No  errors  are  assigned,  and  no  brief  is  filed  on  the  part  of  the 
respondent.  The  only  error  claimed  is  that  the  court  in  his  charge 
did  not,  of  his  own  motion,  instruct  the  jury  that  the  respondent  was 
presumed  to  be  innocent  until  proven  guilty.  No  intent  was  necessary 
to  constitute  this  crime.  People  v.  Waldvogel,  49  Mich.  337,  13  N. 
W.  620;  People  v.  Blake,  52  Mich.  566,  18  N.  W.  360;  People  v. 
Riley,  71  Mich.  349,  38  N.  W.  922;  People  v.  Neumann,  85  Mich. 
98,  48  N.  W.  290.  The  respondent's  counsel  did  not  request  the  court 
to  thus  instruct  the  jury.  I  can  see  no  reason  for  holding  that,  under 
the  circumstances  of  this  case,  the  defendant  was  prejudiced. 

The  conviction  should  be  affirmed,  and  the  circuit  judge  advised 
to  proceed  to  judgment  on  the  verdict. 


PEOPLE  V.  PALMER. 

(Court  of  Appeals  of  New  York,  1888.    100  N.  Y.  110,  10  N.  E.  520.  4  Am.  St 

Rep.  423.) 

Appeal  from  General  Term,  Supreme  Court,  Third  Department. 
Indictment  of  Frank  Palmer  for  the  murder  of  Peter  Bernard,  in 
Clinton  county,  in  1885,  followed  by  conviction.     The  General  Term 


294  TPJAL.  (CL.  12 

reversed  the  judgment,  and  ordered  a  new  trial,  and  the  people  ap- 
pealed. 

Finch,  J.'^°  The  prisoner  was  convicted  of  murder  in  the  second 
degree,  and  that  conviction  reversed  by  the  General  Term  because 
there  was  no  direct  evidence  which  identified  the  body  found  as  that 
of  the  person  alleged  to  have  been  murdered.  From  that  decision  the 
people   appeal.        *     *     '•' 

It  has  always  been  the  rule,  since  the  time  of  Lord  Hale,  that  the 
corpus  delicti  should  be  proved  by  direct,  or  at  least,  by  certain  and 
imequivocal,  evidence.  But  it  never  was  the  doctrine  of  the  common 
law  that,  when  the  corpus  delicti  had  been  duly  established,  the  fur- 
ther proof  of  the  identity  of  the  deceased  person  should  be  of  the 
same  direct  quality  and  character.  And  this  becomes  quite  evident 
from  a  consideration  of  the  history  and  philosophy  of  the  rule.  By 
the  corpus  delicti — the  body  or  substance  of  the  offense — has  always 
been  meant  the  existence  of  a  criminal  fact.  Unless  such  a  fact  exists, 
there  is  nothing  to  investigate.  Until  it  is  proved,  inquiry  has  no  point 
upon  which  it  can  concentrate.  Indeed,  there  is  nothing  to  inquire 
about.  But,  when  a  criminal  fact  is  discovered,  its  existence,  for  the 
purpose  of  a  judicial  investigation,  must  be  established  fully,  com- 
pletely, by  the  most  clear  and  decisive  evidence ;  for  otherwise  the 
after-reasoning  founded  upon  it,  and  drawing  its  force  from  it,  will  be 
dangerous,  fallacious  and  unreliable.  As  the  weakness  of  the  founda- 
tion is  more  and  more  intensified  while  the  superstructure  ascends  and 
the  weight  grows,  so  the  circumstantial  evidence  built  upon  a  crim- 
inal fact,  not  certain  to  have  existed,  becomes  itself  weak  and  inde- 
cisive, and  more  and  more  so  as  the  suspicions  expand  and  extend.  If 
somebody  has  been  murdered,  a  motive  for  a  murder  becomes  a  sig- 
nificant fact,  rendered  more  so  when  identification  shows  it  a  motive 
for  the  particular  murder.  But,  if  the  death  is  doubtful,  the  probative 
force  of  a  motive  dwindles  to  mere  suspicion. 

In  the  case  of  Rulofif  v.  People,  18  N.  Y.  179,  the  doctrine  was  both 
illustrated  and  applied.  The  death  of  the  prisoner's  infant  child  was 
not  proved,  but  in  its  place  was  put  the  equivocal  fact  of  a  sudden  and 
unexplained  disappearance.  The  evidence  might  all  be  true,  and  yet 
the  child  be  hving  and  not  dead;  and,  if  living,  every  circumstance 
relied  upon  became  at  once  fallacious  and  deceptive.  Such  circum- 
stances gain  their  probative  force  only  upon  condition  that  there 
is  a  criminal  fact  which  they  serve  to  explain.  But  the  corpus  delicti — 
the  existence  of  a  criminal  fact — may  be  completely  established,  and 
the  need  of  direct  proof  satisfied,  before  the  question  of  identity  is 
reached.  There  may  be  direct  proof  of  a  murder,  though  no  one  knows 
the  person  of  the  victim.  A  dead  body  is  found  with  the  skull  mashed 
in  upon  the  brain,  under  circumstances  which  exclude  any  inference 
of  accident  or  suicide.     There  we  have  direct  evidence  of  the  death, 

10  Part  of  this  case  is  omitted. 


Cb.  12)  TRIAL.  295 

and  cogent  and  irresistible  proof  of  the  violence ;  the  latter  the  cause, 
and  the  former  the  effect ;  both  obvious  and  certain,  and  establishing 
the  existence  of  a  criminal  fact  demanding  an  investigation.  These 
facts  proved,  the  corpus  delicti  is  established,  although  nobody  as 
yet  knows,  and  nobody  may  ever  know,  the  name  or  personal  identity 
of  the  victim.  Beyond  the  death  and  the  violence  remain  the  two 
inquiries  to  which  the  ascertained  criminal  fact  gives  rise :  who  is  the 
slain,  and  who  the  slayer?  the  identity  of  the  one,  and  the  agency  of 
the  other.  These  may  be  established  by  circumstantial  evidence  which 
convinces  the  conscience  of  the  jury,  and  because  a  basis  has  been 
furnished  upon  which  inferences  may  stand  and  presumptions  have 
strength.  That  I  have  correctly  stated  what  is  meant  by  the  corpus 
delicti  requiring  direct  proof,  and  that  it  never  did  include  the  identity 
of  the  victim,  but  left  that  open  to  indirect  or  circumstantial  evidence, 
is  shown  by  an  unbroken  and  unvarying  concurrence  of  authority.  *  *  * 
The  judgment  of  the  General  Term  should  be  reversed,  and  that  of 
the  oyer  and  terminer  of  Clinton  county  affirmed.'^  All  concur,  except 
Gray^  J.,  dissenting. 


REG.  V.  BURTON. 
(Court  for  Crown  Cases  Reserved,  1854.    I  Dears.  Cr.  Cas.  2S2.) 

John  Burton  was  indicted  at  the  January  sessions,  1854,  for  the 
county  of  Middlesex,  for  stealing  a  quantity  of  pepper. 

It  was  proved  at  the  trial,  by  the  person  having  charge  of  the  ware- 
house, that  the  prisoner  was  seen  coming  out  of  the  lower  room  of  a 
warehouse  in  the  London  Docks,  in  the  floor  above  which  a  large 
quantity  of  pepper  was  deposited,  some  in  bags  and  some  loose  upon 
the  floor,  and  that  the  witness,  having  suspicion  of  the  prisoner  from 
the  bulky  state  of  his  pocket,  stopped  him  and  said,  "I  think  there  is 
something  wrong  about  you,"  upon  which  the  prisoner  turned  and  said, 
"I  hope  you  will  not  be  hard  with  me,"  and  threw  a  quantity  of  pepper 
out  of  his  pocket  on  the  ground.  The  witness  further  proved  that 
no  pepper  was  missed,  and  tliat  he  could  not  say  from  the  large 
quantity  of  pepper  that  was  in  the  warehouse  that  any  had  been  stolen  ; 
but  the  pepper  found  on  the  prisoner  was  of  the  like  description  with 
the  pepper  in  the  warehouse. 

The  prisoner  had  no  business  in  the  warehouse. 

It  was  contended  by  the  prisoner's  counsel,  on  the  authority  of  R. 
v.  Dredge,  1  Cox,  Crown  Cases,  235,  that  upon  this  state  of  facts  the 
judge  was  bound  to  direct  an  acquittal.  I  overruled  the  objection,  being 
of  opinion  that,  notwithstanding  the  statement  of  the  witness  that  he 

71  The  court  decided  that  the  provision  of  the  Penal  Code  (section  ISl) 
which  prohibits  a  conviction  "of  murder  or  nianslaujibter.  unless  the  death 
of  the  person  alleged  to  have  been  killed,  and  the  fact  of  killint:  as  allei?e<l. 
are  each  established  as  independent  facts,  the  former  by  direct  jtroof,  and  the 
latter  beyond  a  reasonable  doubt,"  was  merely  declaratory  of  the  existing 
rule  of  the  common  law. 


296  TRIAL.  (Ch.  12 

could  not  swear  that  any  pepper  was  stolen,,  there  was  evidence  to  go 
to  the  jury. 

The  jury  returned  a  verdict  of  guilty,  and  the  question  reserved  for 
the  consideration  of  the  court  is  whether  I  ought  to  have  directed  a 
verdict  of  acquittal  or  to  have  left  the  case  for  the  consideration  of 
the  jury. 

If  the  court  should  be  of  opinion  that  the  case  ought  not  to  have 
been  left  to  the  jury,  a  verdict  of  acquittal  is  to  be  entered. 

Judgment  on  the  conviction  was  postponed,  and  the  prisoner  was 
committed  to  the  House  of  Correction  at  Coldbath  Fields. 

John  Adams. 

This  case  was  argued  on  the  2<Sth  of  January,  1854,  before  Jervis,  C. 
J.,  MaulE,  J.,  WiGHTMAN,  J.,  WiLUAMS,  J.,  and  Platt,  B. 

Ribton,  for  the  prisoner,  cited  the  case  of  R.  v.  Dredge,  1  Cox,  C. 
C.  235,  as  conclusive. 

MaulE,  J.  The  distinction  is  plain.  That  was  the  case  of  a  little 
boy  who  asserted  that  the  doll  he  was  charged  with  having  stolen 
was  his  own.  Here  the  prisoner  has  a  quantity  of  pepper  about  him, 
and  says,  not  that  it  was  his  own  property,  but  "Don't  be  hard  upon 
me."    The  child  conducted  himself  like  an  honest  person. 

Ribton :  It  is  submitted  that  the  corpus  delicti  must  be  proved  in 
every  case,  and  you  cannot  make  any  difiference  in  the  application  of 
the  rule. 

MauIvE,  J.  The  offense  must  be  proved.  If  a  man  go  into  the 
London  Docks  sober,  without  means  of  getting  drunk,  and  comes  out 
of  one  of  the  cellars  very  drunk,  wherein  are  a  million  gallons  of  wine, 
I  think  that  would  be  reasonable  evidence  that  he  had  stolen  some  of 
the  wine  in  that  cellar,  though  you  could  not  prove  that  any  wine  was 
stolen  or  any  wine  was  missed. 

Ribton :    The  corpus  delicti  must  be  proved. 

Maule,  J.  Where  is  the  rule  that  the  corpus  delicti  must  be  ex- 
pressly proved? 

Ribton :   In  Lord  Hale  it  is  so  laid  down. 

Maule,  J.  Only  as  a  caution  in  cases  of  murder.  He  does  not 
say  it  is  to  be  observed  in  every  case. 

Ribton :  But  the  principle  would  be  the  same  in  every  case,  and 
was  adopted  by  Lord  Stowell  in  Evans  v.  Evans,  1  Hagg.  Con.  Rep. 
79.  There  is  also  the  case  of  Hickson  v.  Evans,  6  T.  R.  58.  He  would 
also  refer  to  Starkie  on  Evidence,  862. 

Jervis,  C.  J.  We  are  all  of  opinion  that  there  is  nothing  in  the 
objection.  My  Brother  MaueE  has  already  pointed  out  the  clear  dis- 
tinction between  this  case  and  Rex  v.  Dredge. 

Conviction  affirmed.'^ 

T  2  "I  will  concliKle  what  I  have  to  say  on  this  subject,  by  a  reference  to  a 
few  obvious  and  well-established  rules,  suggested  by  experience,  to  be  applied 
to  the  reception  and  effect  of  circumstantial  evidence. 

"The  first  is   that  the  several   circumstances   upon   which   the   conclusion 


Ch.  12)  TRIAL.  291 


HARRIS  V.  STATE. 

(Court  of  Appeals  of  Texas,  188'.).     28  Tex.  App.  308,  12  S.  W.  1102,  10  Am. 

St.  Kep.  837.) 

White,  P.  J.  Appellant  has  been  convicted  of  the  murder  of  her 
infant  babe,  and  her  punishment  has  been  assessed  at  a  life  term  in 
the  penitentiary.  We  are  of  opinion  that  the  evidence  establishing 
the  corpus  delicti  is  not  sufficient  to  sustain  the  judgment,  in  so  far 
as  the  same  is  made  to  appear  in  the  record  here  before  us.  To  war- 
rant a  conviction  it  was  necessary  for  the  state  to  prove  that  the  child 
was  born  alive,  that  it  had  an  existence  independent  of  the  mother, 
and  that  afterwards  its  life  was  destroyed  by  the  act,  agency,  or  pro- 
curement of  its  mother,  this  defendant.  Wallace  v.  State,  7  Tex.  App. 
570,  Id.,  10  Tex.  App.  255 ;  Sheppard  v.  State,  17  Tex.  App.  74.  De- 
fendant confessed  that  the  child  was  born  on  Sunday  night,  that  it 
was  born  alive,  that  she  put  it  into  Dr.  Baldwin's  spring,  and  that  it 
was  alive  when  she  put  it  in  the  spring.  The  child  was  found  the 
following  Wednesday.  Now,  if  the  defendant's  confessions  were  suf- 
ficient by  themselves,  perhaps  we  might  hold  that  the  corpus  delicti 
had  been  sufficiently  proved.  These,  however,  in  and  of  themselves, 
are  not  sufficient.  The  corpus  delicti  consists,  not  merely  of  an  ob- 
jective crime,  but  of  the  defendant's  agency  of  the  crime;  and  it  is 
well  settled  that,  unless  the  corpus  delicti  in  both  these  respects  is 
proved,  a  confession  is  not  by  itself  enough  to  sustain  a  conviction. 
It  must  be  corroborated.  This  can  seldom  be  done  by  direct  or  pos- 
itive testimony,  but  it  may,  as  well,  be  shown  by  circumstantial  evi- 
dence. Willard  v.  State,  27  Tex.  App.  386,  11  S.'  W.  -153,  11  Am.  St. 
Rep.  197. 

Now,  what  was  the  corroboration  in  this  case?  The  doctor  who 
testified  as  an  expert  says:  'T  cannot  say  positively  whether  the  child 
was  ever  alive,  or  whether  it  had  ever  breathed."     He  dissected  the 

depends  must  be  fully  established  by  proof.  They  are  farts  from  which  the 
main  fact  is  to  be  inferred;  and  they  are  to  be  proved  by  competent  evidence, 
and  by  the  same  weight  and  force  of  evidence,  as  if  each  one  were  itself  the 
main  fact  in  issue.  Under  this  rule,  every  circumstance  relied  upon  as 
material  is  to  be  brousht  to  the  test  of  strict  proof:  and  great  care  is  to  be 
taken  in  guarding  against  feigned  and  pretended  circumstances,  which  may  be 
designedly  contrived  and  arranged,  so  as  to  create  or  divert  suspicion  and 
prevent  the  discovery  of  the  truth.     *     *     * 

"The  next  rule  to  which  I  ask  attention  is  that  all  the  facts  proved 
must  be  consistent  with  each  other,  and  with  the  main  fact  sought  to  be 
proved.     *     *     * 

"Another  rule  is  that  the  circumstances,  taken  together,  should  be  of  a 
conclusive  nature  and  tendency,  leading  on  the  whole  to  a  satisfactory  con- 
clusion, and  producing  in  effect  a  reasonable  and  moral  certainty,  that  the 
accused,  and  no  one  else,  committed  the  offense  charged.  It  is  not  sutticient 
that  they  create  a  probability,  though  a  strong  one :  and  if.  therefore,  assum- 
ing all  the  facts  to  be  true  which  the  evidence  tends  to  establish,  they  may 
yet  be  accounted  for  upon  any  liypothesis  which  does  not  include  the  guilt  of 
the  accused,  the  proof  fails."  Commonwealth  v.  Webster.  5  Cush.  (Mass.) 
317-319,  52  Am.  Dec.  711  (1850). 


21)8  TRIAL.  (Ch.  12 

child's  head,  and  found  that  the  skull  had  not  been  fractured.  He  took 
out  the  lung,  and  applied  the  hydrostatic  test,  and  found  air  in  it — 
the  usually  accepted  test  that  it  had  breathed.  This  was  sufficient  cor- 
roboration as  to  the  fact  that  the  child  was  born  alive.  Concede  that 
the  child  had  been  born  alive.  Was  it  killed,  or  was  it  drowned  ?  Evi- 
dently the  doctor  does  not  think  it  was  killed  by  violence.  As  to  the 
chances  and  probabilities  that  it  had  been  drowned,  he  does  not  say 
one  word.  Why  did  not  he  make  an  examination,  and  give  his  opin- 
ion as  to  the  fact  of  drowning?  What  evidence  of  drowning  is  there 
outside  the  confession?  Was  the  child  found  in  Dr.  Baldwin's  spring? 
If  so,  who  found  it  there,  and  under  what  circumstances?  Was  Dr. 
Baldwin's  spring  of  sufficient  depth  to  drown  the  child?  Was  the 
spring  in  a  public  or  secluded  place  ?  All  these  facts  might  have  been 
testified  to,  and  yet  the  record  contains  no  such  evidence.  The  first  it 
discloses  of  the  body  is  that  somebody  had  found  it,  and  it  was  un- 
der a  box  near  the  spring.  Who  found  it  in  and  took  it  out  of  the 
spring?  Before  we  are  asked  to  sanction  so  serious  a  verdict  and 
judgment,  even  on  the  confession  of  a  defendant,  there  ought  to  be 
furnished  us  some  circumstances  tending  to  corroborate  that  confes- 
sion, since  the  law  will  not  permit  a  conviction  to  stand  alone  upon  the 
confession. 

In  this  case,  because  the  evidence  is  insufficient  to  establish  the 
corpus  delicti,  the  judgment  is  reversed,  and  the  cause  is  remanded.'^^ 


DAVIS  V.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1895.     IGO  U.  S.  469,  IG  Sup.  Ct.  SoS, 

40  li.  Ed.  499.) 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. '^^  *  *  * 
These  extracts  from  the  charge  of  the  court  present  this  important 
question:  If  it  appears  that  the  deceased  was  killed  by  the  accused 
under  circumstances  which — nothing  else  appearing — made  a  case  of 
murder,  can  the  jury  properly  return  a  verdict  of  guilty  of  the  ofifense 
charged  if,  upon  the  whole  evidence,  from  whatever  side  it  comes,  they 
have  a  reasonable  doubt  whether,  at  the  time  of  killing,  the  accused 
was  mentally  competent  to  distinguish  between  right  and  wrong,  or 
to  understand  the  nature  of  the  act  he  was  committing?  If  this  ques- 
tion be  answered  in  the  negative,  the  judgment  must  be  reversed ;  for 
the  court  below  instructed  the  jury  that  the  defense  of  insanity  could 
not  avail  the  accused  unless  it  appeared  affirmatively  to  the  reason- 
able satisfaction  of  the  jury  that  he  was  not  criminally  responsible 
for  his  acts. 

7  3  Cf.  Robinson  v.  State,  12  Mo.  592  (1849);    Stephen  v.  State,  11  Ga.  225 

(1852). 

T4  Part  of  this  case  is  omitted. 


Cb.  12)  TRIAL.  299 

The  fact  of  killing  being  clearly  proved,  tbe  legal  presumption,  based 
upon  the  common  experience  of  mankind  that  every  man  is  sane,  was 
sufficient,  the  court  in  effect  said,  to  authorize  a  verdict  of  guilty,  al- 
though the  jury  might  entertain  a  reasonable  doubt  upon  the  evi- 
dence whether  tlie  accused,  by  reason  of  his  mental  condition,  was 
criminally  responsible  for  the  killing  in  question.  In  other  words,  if 
the  evidence  was  in  equilibrio  as  to  the  accused  being  sane — that  is, 
capable  of  comprehending  the  nature  and  effect  of  his  acts — he  was 
to  be  treated  just  as  he  would  be  if  there  were  no  defense  of  insanity, 
or  if  there  were  an  entire  absence  of  proof  that  he  was  insane.    *    *    * 

We  are  unable  ,to  assent  to  the  doctrine  that  in  a  prosecution  for 
murder,  the  defense  being  insanity,  and  the  fact  of  the  killing  with  a 
deadly  weapon  being  clearly  established,  it  is  the  duty  of  the  jury  to 
convict  where  the  evidence  is  equally  balanced  on  the  issue  as  to  the 
sanity  of  the  accused  at  the  time  of  the  killing.  On  the  contrary,  he 
is  entitled  to  an  acquittal  of  the  specific  crime  charged  if,  upon  all 
the  evidence,  there  is  reasonable  doubt  whether  he  was  capable  in  law 
of  committing  crime.     *    *     '^ 

Upon  whom,  then,  must  rest  the  burden  of  proving  that  the  accused, 
whose  life  it  is  sought  to  take  under  the  forms  of  law,  belongs  to  a 
class  capable  of  committing  crime?  On  principle,  it  must  rest  upon 
those  who  affirm  that  he  has  committed  the  crime  for  which  he  is 
indicted.  That  burden  is  not  fully  discharged,  nor  is  there  any  legal 
right  to  take  the  life  of  the  accused,  until  guilt  is  made  to  appear  from 
all  the  evidence  in  the  case.  The  plea  of  not  guilty  is  unlike  a  spe- 
cial plea  in  a  civil  action,  which,  admitting  the  case  averred,  seeks  to 
establish  substantive  grounds  of  defense  by  a  preponderance  of  evi- 
dence. It  is  not  in  confession  and  avoidance,  for  it  is  a  plea  that  con- 
troverts the  existence  of  every  fact  essential  to  constitute  the  crime 
charged.  Upon  that  plea  the  accused  may  stand,  shielded  by  the  pre- 
sumption of  his  innocence,  until  it  appears  that  he  is  guilty;  and  his 
guilt  cannot,  in  the  very  nature  of  things,  be  regarded  as  proved,  if 
the  jury  entertain  a  reasonable  xloubt  from  all  the  evidence  whether 
he  was  legally  capable  of  committing  crime. 

This  view  is  not  at  all  inconsistent  with  the  presumption  which  the 
law,  justified  by  the  general  experience  of  mankind,  as  well  as  by  con- 
siderations of  public  safety,  indulges  in  favor  of  sanity.  If  that  pre- 
sumption were  not  indulged,  the  government  would  always  be  under 
the  necessity  of  adducing  affirmative  evidence  of  the  sanity  of  an  ac- 
cused. But  a  requirement  of  that  character  would  seriously  delay  and 
embarrass  the  enforcement  of  the  laws  against  crime,  and  in  most 
cases  be  unnecessary.  Consequently  the  law  presumes  that  every  one 
charged  with  crime  is  sane,  and  thus  supplies  in  the  first  instance  the 
required  proof  of  capacity  to  commit  crime.  It  authorizes  the  jury  to 
assume  at  the  outset  that  the  accused  is  criminally  responsible  for  his 
acts. 


300  TRIAL.  (Ch.  12 

But  that  is  not  a  conclusive  presumption,  which  the  law,  upon 
grounds  of  public  policy,  forbids  to  be  overthrown  or  impaired  by- 
opposing  proof.  It  is  a  disputable,  or,  as  it  is  often  designated,  a 
rebuttable,  presumption,  resulting  from  the  connection  ordinarily  ex- 
isting between  certain  facts,  such  connection  not  being  "so  intimate 
nor  so  nearly  universal  as  to  render  it  expedient  that  it  should  be  ab- 
solutely and  imperatively  presumed  to  exist  in  every  case,  all  evidence 
to  the  contrary  being  rejected;  but  yet  it  is  so  general  and  so  nearly 
universal  that  the  law  itself,  without  the  aid  of  a  jury,  infers  the  one 
fact  from  the  proved  existence  of  the  other,  in  the  absence  of  all  op- 
posing evidence."  1  Greenl.  Ev.  §  38.  It  is  therefore  a  presump- 
tion that  is  liable  to  be  overcome,  or  to  be  so  far  impaired,  jn  a  par- 
ticular case  that  it  cannot  be  safely  or  properly  made  the  basis  of  ac- 
tion in  that  case,  especially  if  the  inquiry  involves  human  life. 

In  a  certain  sense  it  may  be  true  that,  where  the  defense  is  insanity, 
and  where  the  case  made  by  the  prosecution  discloses  nothing  what- 
ever in  excuse  or  extenuation  of  the  crime  charged,  the  accused  is 
bound  to  produce  some  evidence  that  will  impair  or  weaken  the  force 
of  the  legal  presumption  in  favor  of  sanity.  But  to  hold  that  such  pre- 
sumption must  absolutely  control  the  jury  until  it  is  overthrown  or 
impaired  by  evidence  sufficient  to  establish  the  fact  of  insanity  beyond 
all  reasonable  doubt,  or  to  the  reasonable  satisfaction  of  the  jury,  is 
in  efifect  to  require  him  to  establish  his  innocence  by  proving  that  he 
is  not  guilty  of  the  crime  charged.     *     *     * 

Strictly  speaking,  the  burden  of  proof,  as  those  words  are  under- 
stood in  criminal  law,  is  never  upon  the  accused  to  establish  his  inno- 
cence, or  to  disprove  the  facts  necessary  to  establish  the  crime  for 
which  he  is  indicted.  It  is  on  the  prosecution  from  the  beginning  to 
the  end  of  the  trial,  and  applies  to  every  element  necessary  to  constitute 
the  crime.  Giving  to  the  prosecution,  where  the  defense  is  insanity, 
the  benefit  in  the  way  of  proof  of  the  presumption  in  favor  of  sanity, 
the  vital  question,  from  the  time  a  plea  of  not  guilty  is  entered  until 
the  return  of  the  verdict,  is  whether,  upon  all  the  evidence,  by  what- 
ever side  adduced,  guilt  is  established  beyond  reasonable  doubt.  If 
the  whole  evidence,  including  that  supplied  by  the  presumption  of 
sanity,  does  not  exclude  beyond  reasonable  doubt  the  hypothesis  of 
insanity,  of  which  some  proof  is  adduced,  the  accused  is  entitled  to 
an  acquittal  of  the  specific  ofifense  charged.  His  guilt  cannot  be  said 
to  have  been  proved  beyond  a  reasonable  doubt — his  wull  and  his  acts 
cannot  be  held  to  have  joined  in  perpetrating  the  murder  charged — if 
the  jury,  upon  all  the  evidence,  have  a  reasonable  doubt  whether  he 
was  legally  capable  of  committing  crime,  or  (which  is  the  same  thing) 
whether  he  willfully,  deliberately,  unlawfully,  and  of  malice  afore- 
thought took  the  life  of  the  deceased. 

As  the  crime  of  murder  involves  sufficient  capacity  to  distinguish 
between  right  and  wrong,  the  legal  interpretation  of  every  verdict  of 


Ch.  12)  TRIAL.  301 

"Guilty  as  charged"  is  that  the  jury  beHeved  from  all  the  evidence  be- 
yond a  reasonable  doubt  that  the  accused  was  guilty,  and  was  tliere- 
fore  responsible  criminally  for  his  acts.  How,  then,  upon  principle, 
or  consistently  with  humanity,  can  a  verdict  of  guilty  be  properly  re- 
turned, if  the  jury  entertain  a  reasonable  doubt  as  to  the  existence  of 
a  fact  which  is  essential  to  guilt,  namely,  the  capacity  in  law  of  the 
accused  to  commit  that  crime?     *     *     * 

It  seems  to  us  that  undue  stress  is  placed  in  some  of  the  cases  upon 
the  fact  that  in  prosecutions  for  murder  the  defense  of  insanity  is  fre- 
quently resorted  to,  and  is  sustained  by  the  evidence  of  ingenious  ex- 
perts whose  theories  are  difficult  to  be  met  and  overcome.  Thus,  it  is 
said,  crimes  of  the  most  atrocious  character  often  go  unpunished,  and 
the  public  safety  is  thereby  endangered.  But  the  possibility  of  such 
results  must  always  attend  any  system  devised  to  ascertain  and  pun- 
ish crime,  and  ought  not  to  induce  the  courts  to  depart  from  prin- 
ciples fundamental  in  criminal  law,  and  the  recognition  and  enforce- 
ment of  which  are  demanded  by  every  consideration  of  humanity  and 
justice.  No  man  should  be  deprived  of  his  life  under  the  forms  of 
law  unless  the  jurors  who  try  him  are  able,  upon  their  consciences,  to 
say  that  the  evidence  before  them,  by  whomsoever  adduced,  is  suffi- 
cient to  show  beyond  a  reasonable  doubt  the  existence  of  every  fact 
necessary  to  constitute  the  crime  charged. 

For  the  reasons  stated,  and  without  alluding  to  other  matters  in 
respect  to  which  error  is  assigned,  the  judgment  is  reversed,  and  the 
cause  remanded,  with  directions  to  grant  a  new  trial,  and  for  fur- 
ther proceedings  consistent  with  this  opinion. 

Reversed.  ^^ 


STATE  v.  DE  RANGE  et  al. 

(Supreme  CkDurt  of  Louisiana,  1882.     84  La.  Ann.  18G.  44  Am.  Rep.  420.) 

The  defendants  were  indicted  for  murder,  and  found  guilty  of  man- 
slaughter, and  sentenced  to  imprisonment  for  five  years,  from  which 
judgment  they  appealed,  assigning  as  error  the  charge  of  the  court 
that  it  must  be  established  beyond  a  reasonable  doubt  that  there  ex- 
isted, on  the  part  of  the  accused,  no  capacity  to  discern  right  from 

7  5  Accord:  State  v.  .Tolinson.  40  Conn.  130  (1873) :  State  v.  Reidell.  0  Ilonst 
(Del.)  470,  14  Atl.  550  (1888)  [but  see  State  v.  Cole.  2  rennewill.  344.  45  Atl. 
391  (1890)1  ;  Hodge  v.  State.  20  Fla.  11.  7  South.  59;5  (1890)  ;  Dacey  v.  reoiilo, 
116  111.  .5.55.  0  N.  E.  105  (1880);  Plake  v.  State.  121  lud.  4.33.  23  N.  K.  27.3. 
16  Am.  St.  Rep.  408  (1889);  State  v.  Nixon.  32  Kan.  205.  4  Pac  1.5;t  (18,S4>: 
People  V.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  1(;2  (1808);  Hallard  v.  State.  19 
Neb.  009,  28  N.  W.  271  (1880) ;  State  v.  .Tones.  .50  X.  II.  .309.  9  \m.  Rep.  242 
(1871):  Faulkner  v.  Territory,  0  N.  M.  404.  30  Pac.  905  (1892);  Pot>ple  v. 
Spencer,  179  N.  Y.  408.  72  N.  E.  401  (19(H) :  INIaas  v.  Territory,  10  Okl.  714,  <S 
Pac.  900,  53  L.  R.  A.  814  (1901) ;  Dove  v.  State.  3  lleisk.  (Tenn.)  348  (1872) ; 
Revoir  v.  State,  82  Wis.  205,  52  N.  W.  84  (1892). 


302  TRIAL.  (Cb.  12 

wrong  as  to  the  act  forming  the  basis  of  the  charge.  Unless  the  jury 
be  satisfied  in  this  respect,  the  presumption  of  sanity  remains  un- 
shaken and  needs  no  evidence  in  its  support. 

On  appeal  the  court,  through  Luvy,  J.,  affirmed  the  judgment;  Bkr- 
MUDEz,  C.  J.,  taking  no  part  in  the  decision. 

On  application  for  rehearing,  the  opinion  of  the  court  was  deliv- 
ered by 

Fenner,  J.'^^  We  have  given  much  reflection  and  earnest  consid- 
eration to  the  learned  brief  for  rehearing  filed  herein  by  counsel  for 
defendants,  and  especially  to  their  views  touching  the  law  applicable 
to  insanity  as  a  defense  in  criminal  prosecutions. 

The  presumption  of  innocence  and  the  presumption  of  sanity  are 
both  embraced  within  the  class  of  disputable  presumptions  of  law,  cor- 
responding to  the  presumptiones  juris  of  the  Roman  Law,  which  may 
always  be  overcome  by  opposing  proof.  1  Greenl.  Ev.  §  33 ;  1  \Miar- 
ton,  Cr.  L.  §  707. 

It  cannot  be  sensibly  urged  that  the  presumption  of  sanity  is  the 
less  powerful  of  the  two,  since  it  is  the  basis  of  all  human  responsibil- 
ity, the  foundation  of  all  law,  and  the  accepted  guide  of  conduct  in 
all  the  transactions  and  relations  of  mankind.  Experience  certainly 
demonstrates  that,  in  prosecutions  for  crime,  the  presumption  of  in- 
nocence is  rebutted  a  thousandfold  more  frequently  than  the  presump- 
tion of  sanity,  and  the  application  of  any  other  test  would  not  exhibit 
a  dififerent  result.  Inasmuch  as  human  experience  is  the  foundation 
of  presumptions,  this  would  seem  to  indicate  that  the  presumption  of 
sanity  is  the  better  founded  and  more  powerful  of  the  two.  The  doc- 
trine that,  in  criminal  cases,  the  guilt  of  the  accused  must  be  established 
beyond  a  reasonable  doubt,  rests  on  no  other  reason  or  principle  than 
that  such  proof  is  necessary  to  overcome  the  presumption  of  innocence. 
Now,  if,  as  we  have  shown,  the  presumption  of  sanity  is  of  like  char- 
acter, and  of  equal,  if  not  superior,  strength,  why  should  it  be  over- 
come by  a  less  degree  of  proof? 

It  cannot  be  successfully  maintained  that  in  criminal  cases  the  pre- 
sumption of  sanity  is  neutralized,  or  overcome,  or  nullified  by  the  pre- 
sumption of  innocence.  The  weight  of  authority  is  overwhelming  in 
favor  of  the  doctrine  that,  when  the  state  has  established  the  corpus 
delicti  in  such  manner  that  the  accused,  if  sane,  would  be  held  guilty, 
the  presumption  of  innocence  is  rebutted,  and  the  presumption  of  san- 
ity comes  into  full  operation,  to  complete,  by  its  own  force,  the  case 
of  the  state,  and  that,  if  the  accused  relies  upon  the  defense  of  in- 
sanity, the  burden  of  proof  is  thrown  upon  him,  and  he  must  establish 
it  by  such  proof  as  will  rebut  the  presumption  of  sanity. 

The  question  upon  which  English  and  American  courts  are  mainly 
divided  is  as  to  the  kind  and  degree  of  evidence  required  to  effect  such 
rebuttal. 

7  6  Part  of  this  case  is  omitted. 


Cll-  12)  TRIAL.  303 

The  question  is  not  concluded  by  authority.  Courts  have  pro- 
pounded three  theories,  viz.:  (1)  That  insanity,  as  a  defense,  must  be 
proved  beyond  a  reasonable  doubt.  (2)  That  the  jury  are  to  be  gov- 
erned by  the  preponderance  of  evidence.  (3)  That  the  prosecution 
must  prove  sanity  beyond  a  reasonable  doubt.     Whart.  Cr.  L.  §  o-j. 

The  last  theory  does  not  commend  itself  to  our  judgment,  is  sup- 
ported, in  its  full  extent,  by  few  authorities,  and  is  directly  contrary 
to  the  jurisprudence  of  this  court,  as  established  in  the  only  case  in 
which  the  subject  was  directly  considered,  and  where  it  was  held  that, 
"when  insanity  is  pleaded  in  defense  of  a  criminal  act,  it  must  be 
clearly  shown  that  it  existed  at  the  time  of  the  act,"  and  that  "every 
person  is  presumed  to  be  sane  until  the  contrary  is  proved,  and  it  is 
for  him  who  sets  up  this  defense  to  prove  it  by  evidence  which  will 
satisfy  the  minds  of  the  jury  that  the  party  was  insane  at  the  time  of 
the  commission  of  the  offense."     State  v.  Coleman,  27  La.  Ann.  G91. 

The  joint  opinion  of  the  judges  of  England,  delivered  to  the  House 
of  Lords,  through  Lord  Chief  Justice  Tindall,  declared  that  "the  jury 
ought  to  be  told,  in  all  cases,  that  every  man  is  presumed  to  be  sane 
and  to  possess  a  sufficient  degree  of  reason  to  be  responsible  for  his 
crimes,  until  the  contrary  is  proved  to  their  satisfaction,  and  that  to 
establish  a  defense  on  the  ground  of  insanity,  it  must  be  clearlv  prov- 
ed," etc.    McNaghten's  Case,  10  Clark  &  Fin.  210. 

The  doctrine,  in  nearly  the  same  words,  is  announced  bv  Mr.  Green- 
leaf.    2  Greenl.  Ev.  §  373. 

In  Bellingham's  Case  it  is  said  that  Lord  Alansfield  instructed  the 
jury  that  insanity  "ouglit  to  be  proved  by  the  most  distinct  and  un- 
questionable evidence ;  that,  in  fact,  it  must  be  proved  beyond  all 
doubt;  and  that  there  was  no  other  proof  of  insanity  that  would  ex- 
cuse murder  or  any  other  crime." 

In  Oxford's  Case,  Lord  Lyndhurst  told  the  jury  that  "they  must  be 
satisfied,  before  acquitting  the  prisoner,  that  he  did  not  know,"  etc.. 
and  then  expressed  his  entire  concurrence  in  the  observations  of  Lord 
Mansfield,  just  quoted.    1  Russell  on  Cr.  p.  9. 

The  English  authorities  are  uniform  to  the  effect  that,  in  order  to 
sustain  the  defense  of  insanity,  the  jury  must  be  satisfied  that  it  ex- 
ists, and  that  the  proof  must  be  clear  and  convincing,  and  we  do  not 
understand  even  the  decision  of  Lords  Mansfield  and  Lyndhurst  to 
go  further  than  this,  being  satisfied  that  they  only  meant  that  the  proof 
must  be  such  as  to  exclude  all  reasonable  doubt. 

The  Supreme  Courts  of  Virginia,  of  Alabama,  of  Missouri,  of  Mas- 
sachusetts, of  Pennsylvania,  of  California,  of  New  Jersey,  and  per- 
haps other  states,  have  all  held  in  accordance  with  the  doctrine  of 
this  court  in  Coleman's  Case  that  the  burden  of  proof  to  rebut  the 
presumption  of  sanity  is  on  the  defendant,  and  that  insanity  must  be 
proved  affirmatively,  fully,  and  clearly,  and  in  such  manner  as  to  sat- 
isfy the  jury.  It  is  true  that  several  of  the  courts  referred  to  qualify 
their  expressions  by  saying,  in  effect,  that  though  it  must  be  proved 


304  TRIAL.  (Ch.  12 

clearly  and  to  the  satisfaction  of  the  jury,  yet  it  need  not  be  proved 
beyond  a  reasonable  doubt.  The  limitation  is  entirely  inconsistent 
with  the  original  proposition.  That  which  leaves  reasonable  doubt  in 
the  mind  cannot  be  said  to  be  clearly  proved.  A  mind  vexed  with  rea- 
sonable doubts  about  a  fact  cannot  be  satisfied  as  to  the  existence  of 
such  fact. 

Proof  beyond  reasonable  doubt  means  nothing  more,  in  the  oft- 
quoted  language  of  Chief  Justice  Shaw,  than  "that  the  evidence  must 
establish  the  truth  of  the  fact  to  a  reasonable  and  moral  certainty; 
a  certainty  that  convinces  and  directs  the  understanding  and  satisfies 
the  reason  and  judgment  of  those  who  are  bound  to  act  conscientiously 
upon  it."  Webster's  Case,  5  Cush.  320.  As  said  by  another  learned 
court :  "All  that  the  law  requires  is  moral  certainty,  which  is  that  the 
jury,  whether  the  evidence  be  positive  or  presumptive,  should  be  sat- 
isfied. Giles  V.  State,  6  Ga.  276.  Hair-splitting  distinctions,  under 
which  some  courts  hold  that,  if  the  jury  entertain  only  a  reasonable 
doubt  of  the  insanity,  they  must  convict,  but,  if  they  entertain  reason- 
able doubt  of  the  sanity  of  the  prisoner,  they  must  acquit,  do  not 
commend  themselves  to  our  judgment.  Sanity  and  insanity  are  op- 
posite conditions,  exclusive  of  each  other.  A  reasonable  doubt  as  to 
insanity  is  a  reasonable  doubt  as  to  sanity,  and  vice  versa. 

We  can  understand  that  as  to  indififerent  questions,  not  primarily 
solved  bv  any  presumption  of  law,  and  which  the  jury  must  solve  one 
way  or  the  other,  there  may  arise  a  state  of  mind  in  which,  though  not 
clearly  convinced  either  way,  the  juror  must  find  in  favor  of  that  side 
which  is  least  doubtful.  But  on  a  question  primarily,  and,  until  re-, 
butted,  conclusively,  solved  by  a  powerful  presumption  of  law,  we 
cannot  understand  how  a  jury  can  be  justified  in  disturbing  that  ex- 
isting status  of  legal  satisfaction  upon  evidence  which  merely  raises 
a  doubt,  however  reasonable. 

The  doctrine  that  the  jury  must  be  governed  by  the  preponderance 
of  evidence  is  vague,  uncertain,  and  unsatisfactory.  The  only  evi- 
dence on  the  question  of  sanity  and  insanity,  found  in  the  case,  might 
be  evidence  of  the  defendant,  and  although  it  might  not  be  sufficient 
to  raise  more  than  the  most  shadowy  doubt,  the  jury,  under  this  doc- 
trine, might  be  required  to  acquit.  If,  on  the  contrary,  the  presump- 
tion of  sanity  is  to  be  considered  as  an  element  of  weight  in  favor  of 
the  state,  we  are  then  remitted  to  the  original  question,  as  to  what 
weight  of  contrary  testimony  will  constitute  preponderance. 

Much  reflection  has  convinced  us  that  the  doctrine  of  the  English 
courts,  and  of  this  and  other  American  courts  which  have  followed 
them,  is  most  conformable  to  reason,  principle,  and  common  sense. 

The  tendency  of  the  opposite  theory  is,  in  our  judgment,  to  emascu- 
late our  system  of  criminal  justice,  and  to  send  juries  adrift,  without 
any  reliable  chart  or  compass,  upon  a  sea  of  doubt  and  speculation. 

The  phenomena  of  the  human  mind  are  so  mysterious,  the  bounda- 
ries between  its   normal   and   abnormal   conditions   so   shadowy,   the 


Ch.  12)  TRIAL.  305 

transports  of  frantic  passion  and  the  powerful  impulses  of  vicious 
tendencies  are  so  nearly  akin  to  temporary  mental  derangement,  that 
unless  juries  hold  fast  to  the  wholesome  presumption  of  sanity,  re- 
sponsibility for  crime  will  be  seriously  impaired,  and  society  will  lie 
at  the  mercy  of  evil-disposed  men,  who,  while  too  sane  to  be  con- 
fined in  asylums,  can  yet  raise  a  doubt  as  to  whether  they  are  sane 
enough  to  be  punished  for  crime. 

We  stand  by  the  doctrine  of  this  court,  in  Coleman's  Case,  that 
insanity,  when  set  up  as  a  defense  to  a  criminal  charge,  must  be  "clear- 
ly shown  by  evidence  which  will  satisfy  the  minds  of  the  jury  that 
the  party  was  insane  at  the  time  of  the  commission  of  the  offense" ; 
and  we  know  of  no  definition  of  "proof  beyond  a  reasonable  doubt" 
which  is  not  fully  covered  by  this  statement.  Certainly,  in  this  case, 
the  judge  meant,  and  sufficiently  informed  the  jury  that  he  meant, 
nothing  more  than  this,  because  in  other  parts  of  his  charge  he  dis- 
tinctly told  the  jury,  "Should  the  mental  unsoundness  of  one  or  more 
of  the  accused,  at  the  time  of  the  commission  of  the  offense,  be  estab- 
lished to  the  satisfaction  of  the  jury,  you  will  acquit  him  or  them," 
and  again,  "If  you  believe  that,  at  the  time  of  the  act  they  are  ac- 
cused of,  they  were  not  in  such  a  mental  condition  as  to  create  any 
responsibility  on  their  part,  acquit  them."     *     *     * 

We  remain  satisfied  of  the  soundness  of  the  judge's  rulings  on  all 
points,  and  the  rehearing  is  refused.''^ 


LEGO'S  CASE. 
(Newgate  Sessions,  1662.     Kelyng,  27.) 

John  Legg  being  indicted  for  the  murder  of  Mr.  Robert  Wise,  it 
was  upon  the  evidence  agreed,  that  if  one  man  kill  another,  and  no 
suddain  quarrel  appeareth  this  is  murder,  as  Co.  9  Rep.  fol.  67,  b. 
Mackelly's  Case.  And  it  lyeth  upon  the  party  indicted  to  prove  the 
suddain  quarrel. 

77  Accord:  State  v.  Spencer,  21  N.  J.  Law,  196  (1S46) ;  State  v.  ISIurray, 
11  Or.  413,  5  Pac.  55  (1SS4).  See,  and  compare.  Maxwell  v.  State.  Sit  Ala. 
150,  7  South.  824  (1889) ;  Boiling  v.  State.  54  Ark.  588,  16  S.  W.  658  (1891) ; 
People  V.  Bemmerlv,  98  Cal.  299,  33  Pac.  263  (1893) ;  Fogartj'  v.  State,  SO 
Ga.  450,  5  S.  E.  782  (1888) ;  People  v.  Walter.  1  Idaho.  .38(5  (1871) ;  State  v. 
Trout,  74  Iowa,  545,  38  N.  W.  405,  7  Am.  St.  Rep.  499  (1888) ;  Moore  v.  Com- 
monwealth, 92  Ky.  630,  18  S.  W.  833,  13  Ky.  Law  Rep.  738  (1892)  ;  State  v. 
Lawrence,   57   Me.   574    (1870);    Commonwealth   v.    Kogers,    7   Mete.    (Mass.) 


241  (1889) ;  State  v.  Davis,  109  N.  C.  780,  14  S.  E.  55  (1891) ;  Bond  v.  State, 
23  Ohio  St.  349  (1872) ;  Ortwein  v.  Connnonwealth,  76  Pa.  414,  18  Am.  Rep. 
420  (1875) ;  State  v.  Alexander,  30  S.  C.  74.  8  S.  E.  440.  14  Am.  St.  Rep.  879 
(1889) ;    Leache  v.   State,  22  Tex.   App.  279,  3  S.  W.  539,  58  Am.   Rep.  638 

Mik.Or.Pb.— 20 


306  TRIAL.  (Ch.  12 

PADGETT  V.  STATE. 

(Supreme  Court  of  Florida,  1S9S.    40  Fla.  451,  24  South.  145.) 

Taylor,  C.  J.^^  At  the  fall  term,  1897,  of  the  circuit  court  of 
Holmes  county,  William  Padgett,  the  plaintiff  in  error,  was  tried  up- 
on an  indictment  charging  him  with  murder,  and  was  convicted  of 
manslaughter,  and  sentenced  to  15  years'  confinement  in  the  peniten- 
tiary, and  from  such  sentence  comes  here  on  writ  of  error.     *    *    * 

The  defendant's  counsel  requested  the  judge  to  give  the  following 
special  charges:  *  *  *  (3)  The  law  presumes  the  prisoner  to  be  in- 
nocent, and  it  devolves  upon  the  state  to  prove  beyond  a  reasonable 
doubt  that,  at  the  time  of  the  killing,  the  defendant  was  not  in  danger 
either  of  losing  his  life  or  suffering  great  bodily  harm  at  the  hands 
of  the  deceased ;  and  if  you  believe  from  the  evidence  that  the  defend- 
ant was  in  danger  of  losing  his  own  life,  or  of  suffering  great  bodily 
harm,  from  the  deceased,  at  the  time  he  shot  deceased,  you  will  acquit 
him.    *    *    * 

The  third  instruction  requested  and  refused  is  not  sound  law  where- 
in it  puts  the  burden  upon  the  state  of  negativing  beyond  a  reasonable 
doubt  defensive  matter,  the  burden  of  affirmatively  showing  which  is 
upon  the  defendant,  and  that,  too,  whether  the  defendant  affirmatively 
establishes  such  matter  by  proof  or  not.    *    =i=    * 

Finding  no  error,  the  judgment  of  the  court  below  is  affirmed. 


STATE  V.  HAMILTON. 

(Supreme  Court  of  Iowa,  ISSl.     57  Iowa,  596,  11  N.  W.  5.) 

RoTiiROCK,  J.'^^  *  *  *  The  defendant  claimed  that  he  was  at  an- 
other place  when  the  robbery  was  committed.  The  court  instructed 
the  jury  that  the  burden  of  proof  was  on  the  defendant  to  establish 
the  fact  that  he  was  not  present  by  a  preponderance  of  evidence.  This 
instruction  was  correct,  and  is  now  the  settled  law  of  the  state.  State 
V.  Vincent,  21  Iowa,  570,  95  Am.  Dec.  753 ;  State  v.  Hardin,  46  Iowa, 
623,  26  Am.  Rep.  174;  State  v.  Red,  53  Iowa,  69,  4  N.  W.  831 ;  State 
V.  KHne,  54  Iowa,  183,  6  N.  W.  184;  State  v.  Northrop,  48  Iowa, 
583,  30  Am.  Rep.  408. 

We  find  no  error  in  the  record.    Affirmed.^** 


(1S86) ;  People  v.  Dillom,  8  Utah.  92.  30  Pac.  150  (1802) ;  Baccigalupo  v.  Com- 
uiouwealth,  33  Grat.  (Va.)  SOT.  36  Am.  Rep.  795  (1880) ;  State  v.  Strauder,  11 
AV.  Va.  745,  27  Am.  Rep.  606  (1877). 

7  8  Part  of  this  case  is  omitted. 

so  See.  also,  Cleary  v.  State,  .")6  Ark.  124,  19  S.  W.  313  (1892) ;  People  v. 
Boo  Doo  Hong,  122  Cal.  606.  55  Pac.  402  (1898)  ;  Williams  v.  People,  121 
111.  84,  11  N.  E.  881  (1887). 


Ch.  12)  TKIAL.  3U7 

Adams,  C.  J.  (dissenting).  In  my  opinion,  if  the  evidence  intro- 
duced to  show  that  the  defendant  was  at  another  place  when  the  roh- 
bery  was  committed  was  such  as  to  raise  a  reasonable  doubt  of  his 
guilt,  the  jury  would  have  been  justified  in  acquitting.  Now,  it  is 
manifest  that  such  doubt  might  be  raised  by  evidence  which  could  not 
be  said  to  preponderate  over  the  evidence  leading  to  a  different  con- 
clusion. This  court  has  never  midcrtaken  to  abrogate  the  rule  that  a 
reasonable  doubt  of  guilt  is  sufficient  to  justify  an  acquittal.  It  was, 
indeed,  expressly  held  the  rule  in  the  very  cases  relied  ui)on  by  the 
majority  as  holding  that  where  the  defendant  relies  upon  proving  an 
alibi  he  must  prove  it  by  a  preponderance  of  evidence.  Both  rules 
cannot  be  correct,  because  they  are  inconsistent  with  each  other.  No 
jury  can  follow  both. 

Let  us  suppose  a  case  where  the  evidence  of  an  alil)i  does  not  pre- 
ponderate, but  does  raise  a  reasonable  doubt  of  guilt.  What  shall  a 
jury  do?  If  they  follow  the  instruction  that  the  evidence  of  an  alibi 
must  preponderate,  they  must  convict  and  disobey  the  instruction  as  to 
reasonable  doubt.  On  the  other  hand,  if  they  follow  the  instruction 
as  to  reasonable  doubt,  they  must  acquit  and  disobey  the  instruction 
as  to  the  evidence  of  an  alibi.  I  cannot  regard  the  rule  adopted  by 
the  majority  as  to  evidence  of  an  alibi  as  being  the  established  doctrine 
of  this  court,  so  long  as  it  is  inconsistent  with  another  rule  to  which 
the  court  still  adheres.  If  the  court  adopts  the  rule  in  question  as  to 
alibi,  then,  to  be  consistent,  it  should  modify  the  rule  as  to  reasonable 
doubt.  The  rule,  as  modified,  would  be  as  follows:  A  reasonable 
doubt  of  guilt  is  sufficient  to  justify  an  acquittal,  unless  it  is  raised  by 
evidence  of  an  alibi,  and  if  it  is,  then  it  is  not  sufficient.  But  the  rule 
adopted  as  to  alibi  appears  to  me  to  be  wrong  for  another  and  still 
more  cogent  reason.  In  a  civil  action  it  is  sufficient  for  the  defendant 
to  establish  his  defence  by  evidence  wdiich  balances  that  of  the  plain- 
tiff. According  to  the  rule  in  question,  adopted  by  the  majority,  the 
defendant  in  a  criminal  case  must  prove  his  innocence  by  evidence 
which  overbalances  the  evidence  introduced  to  prove  his  guilt,  if  the 
evidence  of  his  innocence  simply  is  that  he  was  where  he  could  not 
have  committed  the  crime.  The  adoption  of  the  rule  in  question  re- 
quires a  modification  of  the  rule  as  to  the  presumption  of  innocence. 
The  true  doctrine  under  such  rule  would  seem  to  be  that  the  evidence 
of  guilt  is  aided  by  a  presumption  of  guilt,  if  the  evidence  of  innocence 
relied  upon  is  the  evidence  of  an  alibi. 

The  majority,  it  appears  to  me,  have  been  misled  by  reason  of  the 
fact  that  there  is  generally  a  well-grounded  suspicion  attached  to  evi- 
dence of  an  alibi.  It  often  comes  from  such  sources  that  it  should  be 
greatly  mistrusted.  The  most  direct  and  positive  testimony  may  often 
very  properly  be  regarded  as  entitled  to  but  little,  if  any,  weight.  But 
to  the  extent  that  it  does  have  weight  it  should  have  the  same  effect 
which  any  other  evidence  of  equal  weight  has.  If  it  has  weight  enough 
to  balance  the  evidence  of  guilt  it  should  certainly  be  sufficient;  and  I 


308  TRIAL.  (Ch.  12 

think  it  should  be  sufficient  if  it  raises  a  reasonable  doubt.  The  views 
which  I  have  expressed  are  supported  by  French  v.  State,  12  Ind.  670, 
where  the  question  is  very  ably  considered  and  the  authorities  re- 
viewed. It  is  not  to  be  denied  that  the  rule  now  adopted  by  the  ma- 
jority finds  some  support  in  dicta  which  has  crept  into  opinions  in  one 
or  more  cases  in  this  court,  and  from  implications  arising  from  rulings 
in  other  cases ;  but  we  have  never  been  asked  before  to  go  quite  as  far 
as  we  are  asked  to  go  now.  An  examination  of  the  cases  in  which  the 
dicta  and  implications  are  found  will  show  that  there  has  always  been 
a  minority  unprepared  to  adopt  the  rule  now  adopted. 

In  my  opinion  the  instruction  cannot  properly  be  approved,  and  I 
am  authorized  to  say  that  Mr.  Justice  Day  concurs  with  me  in  this 
view.^^ 


RAILING  v.  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1885.     HO  Pa.  100,  1  Atl.  314.) 

Green,  J.*^  The  principal  question  in  this  case  is  that  which  relates 
to  the  admissibility  of  the  dying  declarations  of  Annie  Faust.  The 
defendant  was  charged  with  administering  to  her  a  drug  with  intent 
to  procure  a  miscarriage,  and  it  was  also  charged  that  her  death  re- 
sulted as  a  consequence.  There  were  four  counts  in  the  indictment, 
and  all  of  them  charged  the  death  of  the  woman  as  the  result  of  the 
defendant's  unlawful  act.  It  is  entirely  unquestioned  that  dying  dec- 
larations are  admissible  only  in  homicide  cases,  as  a  rule,  'and  that  the 
death  of  the  deceased  must  be  the  subject  of  the  charge,  and  the  cir- 
cumstances of  the  death  the  subject  of  the  declaration.  1  Greenl. 
Ev.  (13th  Ed.)  par.  15G ;  Whart.  Grim.  Ev.  276;  Whart.  Am.  Grim. 
Law,  par.  669  et  seq. 

It  is  equally  unquestioned  that  there  is  no  grade  of  homicide  in- 
volved in  this  case;  the  offense  charged  being  the  one  commonly 
known  as  abortion.  It  is  argued,  however,  with  much  force  that  the 
death  of  the  woman,  when  it  occurs,  is  a  necessary  ingredient  of  the 
offense  under  our  statute,  and  therefore  brings  the  case  within  the  rule 
above  stated.  It  is  claimed  that  the  death  is,  in  part  at  least,  the  sub- 
si  See,  also,  State  v.  Grinstead.  10  Kan.  App.  74,  61  Pac.  975  (1900);  Leslie 
V.  State,  35  Fla.  171,  17  South.  555  (1895). 

"In  all  statutory  crimes  it  is  competent  for  the  Legislature  to  say  that  cer- 
tain acts  proven  by  the  commonwealth  shall  be  sufficient  to  make  out  a  pre- 
sumptive case  against  the  accused,  and  cast  the  burden  of  proof  upon  him, 
provided  the  burden  is  not  cast  upon  him  to  prove  his  innocence,  without  first 
requiring  the  commonwealtli  to  prove  some  material  fact  or  circumstance 
conducing  to  prove  the  guilt  of  the  accused."  Bennett,  J.,  in  Commonwealth 
V.  Minor,  88  Ky.  427,  11  S.  W.  474  (1889). 

See,  also,  Commonwealth  v.  Williams,  6  Gray  (Mass.)  1  (1856) ;  State  v. 
Hurley,  54  Me.  562  (1867).  But  see  In  re  Wong  Hane,  108  Cal.  680,  41  Pac. 
693,  49  Am.  St.  Rep.  138  (1895).  Cf.  State  v.  Beswick,  13  R,  I.  211,  43  Am. 
Rep.  26  (1881). 

8  2  The  statement  of  facts  is  omitted. 


Ch.  12)  TRIAL.  aoo 

ject  of  the  charge.  In  one  sense  this  is  true.  But  the  question  is,  is  it 
so  in  the  real  sense  of  the  rule  which  controls  the  subject? 

That  inquiry  involves  the  necessity  of  an  examination  of  our  crim- 
inal statute  against  abortion.  It  consists  of  two  sections,  the  eii;hty- 
seventh  and  eighty-eighth  of  the  Criminal  Code  of  1860.  The  eighty- 
seventh  provides  that  if  any  person  shall  unlawfully  administer  any 
drug  or  substance  to  a  pregnant  woman,  or  use  any  instrument,  with 
intent  to  procure  her  miscarriage,  and  she  or  the  child  shall  die  in 
consequence  of  such  act,  such  person  shall  be  guilty  of  felony  and  shall 
be  sentenced  to  pay  a  fine  not  exceeding  $.300,  and  to  undergo  impris- 
onment at  labor  not  exceeding  seven  years.  The  eighty-eighth  sec- 
tion provides  that  if  any  person,  with  intent  to  procure  the  miscar- 
riage of  any  woman,  shall  unlawfully  administer  to  her  any  drug  or 
substance,  or  use  any  instrument  or  other  means  with  like  intent,  he 
shall  be  guilty  of  felony,  and  be  sentenced  to  pay  a  fine  not  exceeding 
$500  and  undergo  an  imprisonment  at  labor  not  exceeding  three  years. 

In  the  last  case  the  offense  is  complete  without  the  death  of  the  wo- 
man or  child.  In  both  cases  the  grade  of  the  offense  is  the  same — 
felony.  In  both,  the  acts  done  by  the  prisoner  are  the  same.  In  the 
first,  if  those  acts  are  followed  by  the  death  of  the  mother  or  child  as 
a  consequence,  that  is,  in  the  relation  of  effect  to  a  cause,  a  difference 
results  in  one  of  the  penalties  imposed.  The  possible  fine  is  the  same, 
but  the  possible  imprisonment  is  longer — seven  years  instead  of  three. 
The  facts  which  constitute  the  crime  are  precisely  the  same  in  both 
cases,  to  wit,  the  administering  the  drug,  or  using  the  instrument, 
with  intent  to  procure  a  miscarriage.  It  follows  that  the  death  is  no 
part  of  the  facts  which  go  to  make  up  or  constitute  the  crime.  It  is 
complete  wnth  the  death  or  without  it.  The  death,  therefore,  consid- 
ered in  and  of  itself,  is  not  a  constituent  element  of  the  offense.  It 
may  happen  or  it  may  not.  If  it  does  not  happen,  a  certain  possibil- 
ity of  penalty  follows.  If  it  does  happen,  the  same  character  of  pen- 
alty results,  but  with  a  larger  possibility,  not  a  certainty,  in  one  of 
the  items. 

This  seems  to  be  a  precise  expression  of  the  difference  between 
the  cases  provided  for  in  the  two  sections.  This  being  so,  the  question 
recurs :  is  the  difference  between  the  two  of  such  a  character  as  to 
change  the  application  of  the  rule  of  law  relating  to  the  admissibil- 
ity of  dying  declarations?  Of  course  they  are  not  admissible  if  death 
does  not  result  as  a  consequence  from  the  unlawful  acts.  There- 
fore, if  the  woman  should  subsequently  die  from  some  entirely  dif- 
ferent and  independent  cause,  her  dying  declarations  in  relation  to  a 
prior  miscarriage  would  be  clearly  incompetent.  In  case  she  does 
die  in  consequence  of  the  unlawful  acts,  the  crime  charged  and  tried 
is  not  homicide  in  any  of  its  forms,  but  the  felony  of  administering  a 
drug  or  using  an  instrument  with  intent  to  produce  a  miscarriage.  In 
its  facts  and  in  its  essence  it  is  the  same  crime  that  is  charged  and 
tried  if  no  death  results.    The  death,  when  it  occurs,  is  an  incident,  the 


310  TRIAL.  (Ch.  12 

sole  purpose  of  which  is  to  determine  whether  the  imprisonment  of 
the  defendant  ma}'  be  longer  than  when  death  does  not  occur.  The 
facts  which  constitute  the  crime  may  not  be  proved  by  any  declara- 
tions of  the  woman  when  death  does  not  follow,  or  when  it  follows 
from  some  other  cause. 

Why,  then,  should  the  very  same  facts  be  proved  by  such  declara- 
tions when  death  does  result?  Not  because  it  is  a  homicide  case  and 
the  rule  as  to  dying'  declarations  admits  them  in  such  cases,  because  it 
is  not  a  case  of  homicide  in  any  point  of  view.  Not  because  the  death 
is  the  subject  of  the  charge,  for  the  charge  is  the  attempted  or  ac- 
complished miscarriage  by  means  of  a  drug  or  instrument.  That  crime 
is  as  fully  completed  without  the  death  as  with  it.  The  death,  there- 
fore, is  not  an  essential  ingredient  of  it.  Its  function  under  the  stat- 
ute, when  it  occurs  as  a  consequence,  is  not  to  determine  the  factum, 
or  the  character,  or  the  grade  of  the  crime,  but  the  character  of  the 
penalty  to  be  endured  by  the  criminal.  Of  course,  if  the  statute  had 
declared  that  when  death  resulted,  the  offense  should  be  manslaughter, 
or  any  other  grade  of  homicide,  the  case  would  be  entirely  different. 
Then  the  death  would  be  an  essential  ingredient  of  the  offense,  and 
would  be  the  subject  of  the  charge,  and  the  rule  as  to  dying  declara- 
tions would  apply.  But  such  is  not  the  case,  and  we  do  not  think  it 
wise  to  enlarge  the  operation  of  the  rule  so  as  to  embrace  cases  other 
than  homicide  strictly. 

The  objections  to  the  admission  of  such  testimony  are  of  the  gravest 
■character.  It  is  hearsay,  it  is  not  under  the  sanction  of  an  oath,  and 
there  is  no  opportunity  for  cross-examination.  It  is  also  subject  to 
the  special  objection  that  it  generally  comes  from  persons  in  the  last 
stages  of  physical  exhaustion,  with  mental  powers  necessarily  impaired 
to  a  greater  or  less  extent,  and,  at  the  best,  represents  the  declarant's 
perceptions,  conclusions,  inferences,  and  opinions,  which  may  be,  and 
often  are,  based  upon  imperfect  and  inadequate  grounds.  Nor  is  the 
reason  ordinarily  given  for  their  admission  at  all  satisfactor}-.  It  is 
that  the  declarant,  in  the  immediate  presence  of  death,  is  so  conscious 
of  the  great  responsibility  awaiting  him  in  the  near  future  if  he  utters 
falsehood  that  he  will,  in  all  human  probability,  utter  only  the  truth. 

The  fallacy  of  this  reasoning  has  been  many  times  demonstrated. 
It  leaves  entirely  out  of  account  the  influence  of  the  passion  of  hatred 
and  revenge,  which  almost  all  human  beings  naturally  feel  against 
their  murderers,  and  it  ignores  the  well-known  fact  that  persons  guilty 
of  murder  beyond  all  question  very  frequently  deny  their  guilt  up  to 
the  last  moment  upon  the  scaffold.  But,  in  point  of  fact,  the  reason 
we  are  considering  cannot  be  regarded  as  the  real  or  the  controlling 
reason  for  the  rule,  because,  in  terms,  it  would  be  just  as  applicable 
to  declarations  made  by  dying  persons  in  regard  to  civil  affairs,  or 
to  all  minor  criminal  matters,  as  to  the  facts  attending  a  homicide. 
In  truth,  there  would  be  less  temptation  to  falsifying  in  regard  to  such 
matters  than  in  regard  to  acts  of  violence  perpetrated  upon  the  person 


oil.  12)  TRIAL.  311 

of  the  declarant.  Yet  it  is  undisputed  that  in  all  civil  cases,  and  in  all 
crimes  other  than  homicide,  such  declarations  are  entirely  incompetent. 

A  far  better  reason  in  support  of  the  rule,  as  it  seems  to  us,  is  that 
dying  declarations  are  admitted  from  the  necessity  of  the  case,  and 
in  order  that  murderers  may  not  go  unpunished.  Such  a  reason  onlv 
can  justify  their  admission  in  cases  involving  the  life  of  the  accused. 
While  ordinarily  the  precautions  against  illegitimate  testimony  increase 
with  the  danger  menacing  the  accused,  in  this  one  exceptional  case  of 
homicide  they  are  relaxed,  and  the  rule  which  excludes  mere  declara- 
tions in  all  other  cases  is  removed. 

In  Whart.  Crim.  Ev.  par.  218,  the  rule  is  thus  stated:  "Dying  dec- 
larations are  admitted  from  the  necessity  of  the  case  to  identify  the 
prisoner  and  the  deceased,  to  establish  the  circumstances  of  the  res 
gestae,  and  to  show  the  transactions  from  which  the  death  results."  In 
1  Greenl.  Ev.  (13th  Ed.)  par.  15G,  the  writer  says:  "Those,  or  the  like 
consideration,  have  been  regarded  as  counterbalancing  the  force  of 
the  general  principle  above  stated,  leaving  this  exception  to  stand  only 
upon  the  ground  of  the  public  necessity  of  preserving  the  lives  of 
the  community  by  bringing  manslayers  to  justice.  For  it  often  hap- 
pens that  there  is  no  third  person  present  to  be  an  eyewitness  to  the 
fact,  and  the  usual  witness  in  other  cases  of  felony,  namely,  the  party 
injured,  is  himself  destroyed."  In  the  footnote  2  to  the  above  section 
the  opinion  of  Judge  Redfield  is  quoted  in  the  following  words :  "But 
it  was  from  a  misapprehension  of  the  true  grounds  upon  which  the 
declarations  are  receivable  as  testimony.  It  is  not  received  upon  any 
other  ground  than  that  of  necessity,  in  order  to  prevent  murder  going 
unpunished.  What  is  said  in  the  books  about  the  situation  of  the  de- 
clarant, he  being  virtually  under  the  most  solemn  sanction  to  speak 
the  truth,  is  far  from  presenting  the  true  ground  of  admission." 

Believing  this  to  be  the  true  ground  upon  which  to  place  the  admis- 
sibility of  dying  declarations,  it  will  be  seen  at  once  that  they  are  in- 
competent, except  in  cases  of  actual  homicide,  where  the  killing  is  the 
very  substance  and  subject  of  the  criminal  accusation  on  trial.  This 
we  hold  to  be  the  true  sense  in  which  to  interpret  the  rule  that  such 
declarations  are  only  admissible  where  the  death  is  the  subject  of  the 
charge.  All  the  text-books  and  a  host  of  judicial  decisions  assert  that 
the  rule  of  admissibility  is  confined  to  cases  of  homicide.  Thus  this 
court  in  Brown  v.  Com.,  T3  Pa.  327,  13  Am.  Rep.  740,  states  the  rule, 
quoting  from  Whart.  Am.  Crim.  Law,  par.  669,  in  these  words :  "The 
dying  declarations  of  a  person  who  expects  to  die  respecting  the  cir- 
cumstances under  which  he  received  a  mortal  wound  are  constantly 
admitted  in  criminal  prosecutions  where  the  death  is  the  subject  of 
criminal  inquiry,  though  the  prosecution  be  for  manslaughter,  though 
the  accused  was  not  present  when  they  were  made,  and  had  no  op- 
portunity for  cross-examination,  and  against  or  in  favor  of  the  party 
charged  with  the  death." 


312  TRIAL.  (Ch.  12 

There  is  a  vast  number  of  cases  in  which,  where  the  prisoner  is  tried 
for  a  crime  other  than  homicide,  the  dying  declarations  of  the  person 
upon  whom  the  crime  was  perpetrated  are  inadmissible,  though  they 
relate  to  the  circumstances  of  the  crime.  Thus,  in  Rex  v.  Lloyd,  4 
Car.  &  P.  233,  it  was  held  that  on  an  indictment  for  robbery  the  declara- 
tion in  articulo  mortis  of  the  party  robbed  is  not  admissible  in  evidence. 
Bolland,  B.,  said:  "I  think  that  declarations  in  articulo  mortis  are  not 
admissible  in  evidence  to  make  out  a  charge  of  robbery ;  nor,  indeed, 
any  other  charge  except  those  in  which  the  death  of  the  deceased  per- 
son, by  whom  the  declaration  was  made,  is  the  subject  of  the  inquiry." 
A  citation  of  this  class  of  cases  is  not  necessary,  as  they  are  quite  fa- 
miliar and  are  not  at  all  disputed. 

It  only  remains  to  consider  the  course  of  authority  upon  the  very 
question  now  before  us.  It  has  never  heretofore  been  before  this 
court.  But  in  England  and  several  of  the  states  it  has  been  consid- 
ered and  determined,  and  the  weight  of  authority  seems  to  be  quite 
decidedly  against  the  admissibility  of  the  evidence.  Thus,  in  Rex  v. 
Hutchinson,  2  Barn.  &  C.  608,  note  a,  the  prisoner  was  indicted  for 
administering  a  drug  to  a  woman  pregnant  but  not  quick  with  child, 
with  intent  to  procure  abortion.  The  woman  was  dead,  and  for  the 
prosecution  evidence  of  her  dying  declaration  upon  the  subject  was 
tendered.  The  court  rejected  the  evidence,  observing  that,  although 
the  declaration  might  relate  to  the  cause  of  the  death,  still  such  decla- 
rations were  admissible  in  those  cases  alone  where  the  death  of  the 
party  was  the  subject  of  the  inquiry. 

In  Reg.  V.  Hind,  8  Cox,  Cr.  Cas.  300,  the  defendant  was  indicted  for 
using  instruments  upon  a  woman  with  intent  to  produce  an  abortion, 
in  consequence  of  which  she  died.  It  was  held  that  her  dying  declara- 
tions in  relation  to  the  offense  were  inadmissible.  The  same  course 
was  followed  in  the  state  of  New  York  in  the  case  of  People  v.  Davis, 
56  N.  Y.  95,  where  the  statute  is  quite  similar  to  our  own ;  the  penalty 
being  increased  when  the  woman  dies  in  consequence  of  the  unlawful 
acts.  It  was  held  that  the  dying  declarations  of  the  woman  were  in- 
competent on  the  general  ground  that  the  death  was  not  the  subject 
of  the  charge. 

In  the  case  of  State  v.  Harper,  35  Ohio  St.  78,  35  Am.  Rep.  596, 
the  same  doctrine  was  held  under  a  statute  almost  identical  with  ours. 
The  Chief  Justice  said :  "This  was  an  indictment  for  unlawfully  using 
an  instrument  with  the  intent  of  producing  an  abortion,  and  not  an 
indictment  for  homicide.  State  v.  Barker,  28  Ohio  St.  583 ;  People  v. 
Davis,  56  N.  Y.  96.  The  death  was  not  the  subject  of  the  charge,  and 
was  alleged  only  as  a  consequence  of  the  illegal  act  charged,  which  lat- 
ter was  the  only  subject  of  investigation.  Did  the  court  err  in  reject- 
ing the  dying  declaration  in  proof  of  the  charge?  We  think  not.  The 
general  rule  is  that  dying  declarations  are  admissible  only  when  the 
death  of  the  declarant  is  the  subject  of  the  charge,  and  the  circum- 
stances of  the  death  are  the  subject  of  the  dying  declaration.     Rex 


Ch.  12)  TRIAL.  313 

V.  Mead,  2  Barn.  &  C.  605 ;  1  Greenl.  Ev.  156 ;  Rex  v.  Uovd,  4  Car. 
&  P.  233." 

On  the  other  hand,  the  Supreme  Court  of  Indiana  has  held  that 
such  declarations  were  admissible  in  an  indictment  under  a  similar  stat- 
ute. Montgomery  v.  State,  reported  in  3  Crim.  Law  Mag.  523.  In 
State  V.  Dickinson,  41  Wis.  299,  the  declarations  were  admitted,  but 
by  the  statute  of  that  state  the  offense  is  expressly  made  manslaughter 
where  the  woman  dies,  and  the  case  was  therefore  one  of  homicide  and 
within  the  rule.  The  case  in  Indiana  appears  to  be  the  only  one  in  a 
court  of  last  resort  in  which  the  declarations  have  been  held  admis- 
sible. After  a  careful  examination  of  the  opinion  in  that  case,  and 
also  of  two  other  cases  decided  by  courts  of  quarter  sessions  in  our 
own  state,  we  feel  constrained  to  say  that  we  think  the  better  and 
safer  rule  is  to  limit  the  admissibility  of  dying  declarations  to  cases  of 
homicide  only.  We  are  therefore  of  opinion  that  the  learned  court 
below  was  in  error  in  receiving  the  declarations  of  Annie  Faust  in  this 
case,  and  for  that  reason  the  judgment  must  be  reversed. 

The  second  assignment  is  not  sustained.  The  third,  fourth,  and 
fifth  become  immaterial  in  consequence  of  our  decision  rejecting  the 
declarations.  The  sixth  and  seventh  assignments  are  to  some  extent 
justified  by  the  language  of  the  charge,  but  we  do  not  feel  disposed 
to  reverse  on  them.  The  eighth  assignment  is  not  sustained,  and  the 
ninth  does  not  set  out  any  specific  words  of  the  charge,  and  does  not 
appear  to  be  justified  by  its  general  substance. 

The  judgment  is  reversed,  and  the  record  is  remanded  to  the  court 
below  for  further  proceedings,  together  with  this  opinion,  setting  forth 
the  causes  of  reversal.^^ 


BASYE  V.  STATE. 

(Supreme  Court  of  Nebraska,  1895.    4.5  Neb.  201.  03  N.  W.  Sll.) 

NoRVAL,  C.  J.«*  At  the  January,  A.  D.  1894,  term  of  the  district 
court  of  Saunders  county,  the  plaintiff  in  error  was  tried  upon  an  in- 
formation charging  him  with  murder  in  the  first  degree,  by  having 
on  the  14th  day  of  December,  1893,  unlawfully,  purposely,  and  felo- 
niously, and  of  his  deliberate  and  premeditated  malice,  killed  and  mur- 
dered one  William  O.  Wright.  The  prisoner  was  found  guilty  of 
murder  in  the  second  degree,  and  thereupon  he  moved  to  set  aside 
the  verdict,  and  for  a  new  trial,  which  motion  was  overruled,  and  he 
was  adjudged  to  be  imprisoned  in  the  state  penitentiary  at  hard  labor 

83  Accord:  Reg.  v.  Hind,  Bell,  253  (1S60) ;  State  v.  Meyer.  64  N.  J.  Law, 
382.  45  Atl.  779  (1900) ;  Commonwealth  v.  Homer,  153  Mass.  343,  20  N.  E.  872 
(1891).  Statutes  in  some  states  allow  such  evidence  in  this  class  of  case.  See 
Commonwealth  v.  Homer,  supra. 

84  Part  of  this  case  is  omitted. 


314  TRIAL.  (Ch.  12 

for  the  term  of  20  years,  from  which  judgment  and  sentence  he  pros- 
ecutes a  petition  in  error  to  this  court.    *    *    * 

Upon  the  trial  the  defendant  offered  to  prove  by  two  witnesses,  D. 
O,  White  and  James  Casement,  while  they  were  upon  the  stand,  that 
his  reputation  for  honesty  and  integrity  was  good  in  the  community 
where  he  lived.  The  court  excluded  the  offered  testimony,  and  of 
which  action  complaint  is  now  made.  The  text-books  and  the  adju- 
dicated cases  agree  that  in  a  criminal  trial  evidence  of  the  previous 
good  character  of  the  defendant  is  always  admissible  as  a  fact  for 
the  jury  to  consider  in  determining  the  question  of  guilt  or  innocence. 
The  character  the  defendant  is  entitled  to  prove  must  be  consistent 
with  the  offense  charged.  For  instance,  in  a  prosecution  for  mur- 
der, his  general  reputation  as  a  peaceable  and  quiet  man  is  competent, 
but  not  his  character  for  honesty  and  integrity.  Had  this  prosecu- 
tion been  for  larceny,  then  the  offered  evidence  would  have  been  ad- 
missible. Wharton,  Criminal  Evidence,  §  60,  and  note  3.  Several 
witnesses  were  introduced  by  the  defendant  who  testified  to  his  gen- 
eral reputation  as  a  peaceable  and  law-abiding  citizen.  On  cross-ex- 
amination each,  over  the  objection  and  exception  of  the  defendant, 
stated  that  he  had  heard  of  the  defendant  having  a  quarrel  with,  and 
striking,  a  man  several  years  before  while  he  resided  near  Raymond. 

It  is  argued  that  under  the  rule  announced  in  Olive  v.  State,  11 
Neb.  1,  7  N.  W.  444,  and  Patterson  v.  State,  41  Neb.  538,  59  N.  W. 
917,  the  admission  in  evidence  on  cross-examination  of  specific  facts 
tending  to  show  the  accused's  reputation  to  be  bad  was  erroneous. 
The  precise  point  here  raised  was  involved  in  and  passed  upon  by  the 
court  in  the  cases  mentioned  above,  in  each  of  which  it  was  held  that 
the  admission  of  such  testimony  upon  cross-examination  was  reversible 
error.  In  the  syllabus  in  each  case  it  was  correctly  decided  that,  where 
a  defendant  in  a  criminal  case  has  introduced  evidence  of  his  good 
character  or  reputation,  the  state  in  reply  cannot  prove  particular  facts 
in  order  to  show  it  to  be  bad.  This  rule  is  a  wise  one,  for  the  obvious 
reason  that  the  accused  is  not  expected  to  be  prepared  to  meet  a  dis- 
tinct and  specific  charge.  The  principle,  however,  was  not  correctly 
applied  to  the  facts  in  the  two  Nebraska  cases.  It  was  upon  cross- 
examination  that  the  witness  was  interrogated  as  to  specific  matters. 
While  particular  facts  are  inadmissible  in  evidence  upon  direct  ex- 
amination for  the  purpose  of  sustaining  or  overthrowing  character, 
yet  this  doctrine  does  not  extend  to  cross-examination. 

It  is  firmly  settled  by  the  adjudications  in  this  country  that  upon 
cross-examination  of  a  witness  who  has  testified  to  general  reputation 
questions  may  be  propounded  for  the  purpose  of  eliciting  the  source 
of  the  witness'  information,  and  particular  facts  may  be  called  to  his 
attention,  and  asked  whether  he  ever  heard  them.  This  is  permis- 
sible, not  for  the  purpose  of  establishing  the  truth  of  such  facts,  but 
to  test  the  witness'  credibility,  and  to  enable  the  jury  to  ascertain  the 
weight  to  be  given  to  his  testimony.    The  extent  of  the  cross-examina- 


€ll.  12)  TRIAL.  315 

tion  of  a  witness  must  be  left  to  the  discretion  of  the  trial  court.  The 
questions  put  to  the  several  witnesses  were  within  the  scope  of  a  legiti- 
mate cross-examination,  and  there  was  no  abuse  of  discretion  in  per- 
mitting- them  to  be  answered.  State  v.  Arnold,  13  Iowa,  480 ;  Oliver 
V.  Pate,  43  Ind.  133  ;  Annis  v.  People,  13  Mich.  511 ;  Rex  v.  Martin. 
G  C.  &  P.  (Eng.)  563;  Leonard  v.  Allen,  11  Cush.  (Mass.)  341;  In- 
gram V.  State,  67  Ala.  67 ;  Tesney  v.  State,  77  Ala.  33 ;  De  Arman 
V.  State,  71  Ala.  357 ;  Jackson  v.  State,  78  Ala.  471 ;  State  v.  Jerome, 
33  Conn.  365;  Carpenter  v.  Blake,  10  Hun  (N.  Y.)  358;  Phillips, 
Evidence,  353;   1  Best,  Evidence,  §  361. 

Another  contention  is  that  the  court  erred  in  refusing  to  allow  the 
defendant  to  prove  that  the  deceased  was  a  quarrelsome  and  irritable 
man,  and  that  he  had  made  threats  against  the  defendant,  which  were 
communicated  to  the  accused  the  evening  prior  to  the  shooting.  This 
evidence  ought  to  have  been  received.  In  a  homicide  case,  where  it 
is  claimed  that  the  killing  was  in  self-defense,  evidence  of  the  quarrel- 
some disposition  of  the  deceased  and  the  threats  are  proper  elements 
for  the  jury  to  consider  in  determining  whether  the  defendant  was 
justified  in  taking  the  life  of  the  deceased.    *    *    *  ^^ 


REGINA  V.  TAYLOR. 
(Oxford  Spring  Circuit,  Berkshire  Assizes,  1S39.  S  Carr.  &  P.  733.) 

Arson.  The  prisoner  was  indicted  for  setting  fire  to  the  house  of 
Robert  Lyford,  several  persons  (named  in  the  indictment)  being 
therein. 

On  the  part  of  the  prosecution,  it  was  proposed  to  prove  a  confes- 
sion made  by  the  prisoner  to  Mr.  Israel  Winders. 

It  appeared  that,  on  the  morning  of  the  fire,  the  prisoner,  who  was 
a  servant  of  the  prosecutor,  was  sent  for  into  the  parlor,  in  which 
Mrs.  Lyford  and  Mr.  Winders  were,  and  that  Mv.  Winders,  who  was 
not  a  constable  or  in  any  office  or  authority,  said  to  the  prisoner,  ''You 
had  better  tell  how  you  did  it,"  and  that  she  thereupon  made  an  an- 
swer. 

8  3  Compare  Commonwealth  r.  Xagle,  157  Mass.  5."4.  32  X.  E.  SGI  (lSn.3). 

"Good  character  cannot  be  disassociated  from  the  other  facts  in  the  case, 
by  referring  to  it  alone  as  being  sulhcient  to  generate  a  doubt,  any  more  than 
a  similar  reference  could  be  made  to  any  other  fact  iu  evidence.  Under  our 
rule,  good  character  of  the  defendant  is  a  fact  in  the  case,  in  the  light  of 
which  the  other  facts  must  be  weighed.  The  fact  of  good  character  may  gen- 
erate a  reasonable  doubt,  when  without  this  fact  the  jury  might  be  satislied 
beyond  a  reasonable  doubt  of  guilt.  The  same  may  be  true  of  other  facts 
in  the  case.  The  rule  does  not  authorize  tlie  framing  of  a  charge  in  such  way 
as  to  give  undue  prominence  to  the  fact  of  character,  any  more  than  to  any 
other  fact  in  the  case."  Coleman,  J.,  iu  Murphy  v.  StsUe,  108  Ala.  12,  18 
South.  559  (1895).     Compare  Edmonds  v.  State,  34  Ark.  720  (1879). 


316  TRIAL.  (Ch.  12 

J.  J.  Williams,  for  the  prisoner:  I  submit  that  the  statement  of  the 
prisoner  is  not  receivable.     Here  is  a  direct  inducement  held  out. 

Patteson,  J.     Mr.  Winders  was  not  in  any  office  or  authority. 

J.  J.  WilHams :  In  two  cases  before  Mr.  Justice  Bosanquet,  confes- 
sions were  excluded  when  made  to  a  person  not  in  authority  when  the 
inducement  was  held  out  by  that  person;  and  in  the  case  of  Rex  v. 
Spencer,  Mr.  Baron  Parke  said  that  there  was  a  difference  of  opinion 
among  the  judges  whether  a  confession  made  to  a  person  who  has 
no  authority,  after  an  inducement  held  out  by  that  person,  is  receivable. 

Pattkson,  J.  It  is  the  opinion  of  the  judges  that  evidence  of  any 
confession  is  receivable,  unless  there  has  been  some  inducement  held 
out  by  some  person  in  authority,  and  in  this  case  I  should  have  re- 
ceived the  evidence  of  the  statement  made  to  Mr.  Winders,  if  the  in- 
ducement had  been  held  out  by  him  alone.  But  here  the  inducement 
does  not  rest  with  him  alone,  because  Mrs.  Lyford,  who  was  the  wife 
of  the  prosecutor,  and  also  the  mistress  of  the  prisoner,  was  present 
with  Mr.  Winders,  and  must,  as  she  expressed  no  dissent,  be  taken 
to  have  sanctioned  the  inducement.  I  think,  therefore,  that  the  in- 
ducement must  be  taken  as  if  it  had  been  held  out  by  Mrs.  Lyford, 
who  was  a  person  in  authority  over  the  prisoner,  and  that,  therefore, 
the  evidence  is  inadmissible. 

Verdict — Not  guilty.*"    ' 


REX  v.  WARICKSHALU 

(Old  Bailey,  17S3.    1  Leach,  Cr.  Cas.  263.) 

At  the  Old  Bailey  in  April  sessions  1783,  Thomas  Littlepage  was  in- 
dicted before  Mr.  Justice  Nares,  present  Mr.  Baron  Eyre,  for  grand 
larceny;  and  the  same  indictment  charged  Jane  Warrckshall  as  an 
accessary  after  the  fact,  with  having  received  the  property,  know- 
ing it  to  have  been  stolen. 

The  accessary  had  made  a  full  confession  of  her  guilt ;  and  in  con- 
sequence of  it  the  property  was  found  in  her  lodgings,  concealed  be- 
tween the  sackings  of  her  bed.  The  confession,  however,  having  been 
obtained  by  promises  of  favor,  the  court  refused  to  admit  it  in  evidence 
against  her;  and  it  was  contended  by  her  counsel  that,  as  the  fact  of 
finding  the  stolen  property  in  her  custody  had  been  obtained  thrqugh 
the  means  of  an  inadmissible  confession,  the  proof  of  that  fact  ought 
also  to  be  rejected,  for  otherwise  the  faith  which  the  prosecutor  had 
pledged  would  be  violated,  and  the  prisoner  made  the  deluded  instru- 
ment of  her  own  conviction. 

8  6  In  some  states  it  is  provided  by  statute  that  a  confession  made  by  a  per- 
son in  custody  is  not  admissible,  unless  such  person  were  warned  that  the  con- 
fession would  be  used  against  him.  See  State  v.  De  Graff,  113  N.  C  688,  18 
S.  E.  507  (1893). 


Ch.  12)  TRIAL.  317 

The  Court.  It  is  a  mistaken  notion  that  the  evidence  of  confes- 
sions and  facts  which  have  been  obtained  from  prisoners  by  prom- 
ises or  threats  is  to  be  rejected  from  a  regard  to  public  faith.  No 
such  rule  ever  prevailed.  The  idea  is  novel  in  theory,  and  would  be 
as  dangerous  in  practice  as  it  is  repugnant  to  the  general  principles  of 
criminal  law.  Confessions  are  received  in  evidence,  or  rejected  as  in- 
admissible, under  a  consideration  whether  they  are  or  are  not  en- 
titled to  credit.  A  free  and  voluntary  confession  is  deserving  of  the 
highest  credit,  because  it  is  presumed  to  flow  from  the  strongest 
sense  of  guilt,  and  therefore  it  is  admitted  as  proof  of  the  crime  to 
which  it  refers ;  but  a  confession  forced  from  the  mind  by  the  flat- 
tery of  hope,  or  by  the  torture  of  fear,  comes  in  so  questionable  a 
shape  when  it  is  to  be  considered  as  the  evidence  of  guilt  that  no  credit 
ought  to  be  given  to  it,  and  therefore  it  is  rejected.  This  principle  re- 
specting confessions  has  no  application  whatever  as  to  the  admission 
or  rejection  of  facts,  whether  the  knowledge  of  them  be  obtained  in 
consequence  of  an  extorted  confession,  or  whether  it  arises  from  any 
other  source ;  for  a  fact,  if  it  exist  at  all,  must  exist  invariably  in  the 
same  manner,  whether  the  confession  from  which  it  is  derived  be  in 
other  respects  true  or  false.  Facts  thus  obtained,  however,  must  be 
fully  and  satisfactorily  proved,  without  calling  in  the  aid  of  any  part 
of  the  confession  from  which  they  may  have  been  derived ;  and  the 
impossibility  of  admitting  any  part  of  the  confession  as  a  proof  of  the 
fact  clearly  shows  that  the  fact  may  be  admitted  on  other  evidence, 
for,  as  no  part  of  an  improper  confession  can  be  heard,  it  can  never 
be  legally  known  whether  the  fact  was  derived  through  the  means  of 
such  confession  or  not ;  and  the  consequences  to  public  justice  would 
be  dangerous  indeed,  for  if  men  were  enabled  to  regain  stolen  prop- 
erty, and  the  evidence  of  attendant  facts  were  to  be  suppressed,  be- 
cause they  had  regained  it  by  means  of  an  improper  confession,  it 
would  be  holding  out  an  opportunity  to  compound  felonies.  The  rules 
of  evidence  which  respect  the  admission  of  facts,  and  those  which 
prevail  with  respect  to  the  rejection  of  parol  declarations  or  confes- 
sions, are  distinct  and  independent  of  each  other.  It  is  true  that 
many  able  judges  have  conceived  that  it  would  be  an  exceeding  hard 
case  that  a  man  whose  life  is  at  stake,  having  been  lulled  into  a  no- 
tion of  security  by  promises  of  favor,  and  in  consequence  of  those 
promises  has  been  induced  to  make  a  confession  by  the  means  of  which 
the  property  is  found,  should  afterwards  find  that  the  confession  with 
regard  to  the  property  found  is  to  operate  against  him.  But  this  sub- 
ject has  more  than  once  undergone  the  solemn  consideration  of  the 
twelve  judges;  and  a  majority  of  them  were  clearly  of  opinion  that 
although  confessions  improperly  obtained  cannot  be  received  in  evi- 
dence, yet  that  any  acts  done  afterwards  might  be  given  in  evidence, 
notwithstanding  they  were  done  in  consequence  of  such  confession. 


318  TRIAL.  (Cb.  12 

SECTION  8.— VARIANCE 


STATE  V.  HARRIS. 

(Superior  Court  of  Delaware,  1S41.     3  Har.  559.) 

The  defendant  was  indicted  for  stealing  "one  pair  of  boots,"  and 
the  proof  was  that  he  stole  two  boots  mismatched,  being  the  right  boot 
of  two  pair.  It  was  objected  by  his  counsel  that  this  proof  did  not 
sustain  the  indictment,  and  the  objection  was  held  good. 

The  object  of  certainty  in  an  indictment  is  to  inform  the  defend- 
ant plainly  and  precisely  of  what  offense  he  is  charged.  This  certainty 
must  be  not  merely  to  a  common  intent,  but  to  a  certain  intent  in  gen- 
eral, which  requires  that  things  shall  be  called  by  their  right  names,  at 
least  by  such  as  they  are  usually  known  by.  "One  pair  of  boots" 
means  two  boots  paired,  matched,  or  suited  to  be  used  together. 

The  prisoner  was  indicted  again. 


REGINA  V.  GORBUTT. 

(Court  of  Criminal  Appeal,  1857.    Dears.  &  B.  Cr.  Cas.  16G.) 

This  case  was  considered  on  the  24th  of  January,  1857,  by  P01.LOCK, 
C.  B.,  WiGHTMAN,  J.,  Cresswell,  J.,  Martin,  B.,  and  Watson,  B.«' 

The  judgment  of  the  court  was  delivered  on  the  31st  of  January, 
1857,  by 

CresswELL,  J.  The  indictment  in  this  case  was  against  the  defend- 
ant as  a  servant  for  stealing,  not  for  embezzling.  The  evidence  set 
out  is  rather  long.  It  appears  that  the  chairman  put  several  ques- 
tions to  the  jury,  and  he  says  the  jury  found  a  general  verdict  of  guilty, 
and  the  court  thereupon  sentenced  the  prisoner  to  four  years  of  penal 
servitude.  He  states  a  case  to  the  Court  of  Criminal  Appeal,  and  re- 
quests our  opinion  whether  the  prisoner  has  been  duly  convicted.  Of 
course  he  means  to  inquire  whether  the  evidence  set  out  was  such  as 
would  warrant  a  verdict  of  guilty  of  stealing.  Now  we  think  there 
is  abundant  evidence  of  embezzlement,  but  not  evidence  of  stealing; 
and  although,  under  the  clause  in  the  recent  act  of  Parliament,  a  pris- 
oner indicted  for  stealing  may  be  convicted  of  embezzlement,^^  yet  he 

8  7  The  opinion  only  is  printed. 

8  8  Similar  statutes  exist  in  the  United  States.  In  Huntsman  v.  State, 
12  Tex.  App.  619  (1S82),  and  State  v.  Harmon.  lOG  AIo.  635,  18  S.  W.  128  (1891). 
such  statute  is  declared  to  infringe  the  constitutional  privilege  of  the  accused 
to  be  informed  of  "the  nature  and  cause"  of  the  accusation  "against  him. 


Cb.  12)  TRIAL.  319 

cannot  be  convicted  of  steabng  if  there  is  only  evidence  of  embezzle- 
ment; therefore  we  think  the  verdict  was  not  warranted  by  the  evi- 
dence, and  the  conviction  must  be  reversed. 

Conviction  quashed. 


LONG  v.  STATE. 

(Supreme  Court  of  Nebraska,  18S8.    23  Neb.  33,  36  N.  W.  310.) 

Reese,  C.  J.^^  *  *  *  A  number  of  objections  are  made  to  the 
instructions  of  the  court,  some  of  which  we  will  next  notice. 

It  is  said  that  the  court  erred  in  giving-  instruction  No;  5,  given  upon 
its  own  motion.  This  instruction  is  as  follows:  "Before  you  can  find 
the  defendant,  Jefferson  Long,  guilty  of  aiding  or  abetting  or  procur- 
ing Ernest  IMeyers  to  commit  murder  in  the  first  degree  by  killing  Em- 
ily Boscombe,  as  charged  in  the  indictment,  you  must  be  satisfied,  be- 
yond a  reasonable  doubt — First,  that  Ernest  Meyers  killed  the  de- 
ceased, Emily  Boscombe,  by  striking  her  with  a  bludgeon,  bolt,  or 
club.  *  *  *  »  'The  remainder  of  this  instruction  need  not  be  quoted, 
as  the  objection  is  urged  to  the  foregoing.  The  indictment  charged 
the  commission  of  the  murder  with  a  certain  "bludgeon." 

It  is  insisted  that  the  words  "bludgeon,  bolt,  or  club"  should  not  have 
been  used  in  the  instruction.  The  testimony  failed  to  show  the  char- 
acter of  the  instrument  with  which  death  was  produced,  the  body  of 
the  deceased  being  almost  entirely  consumed  by  fire,  the  house  in 
which  she  resided  being  burned  over  her  body  at  the  time  of  her  death. 
There  was  some  proof  tending  to  show  the  description  of  an  iron  bolt 
or  club  soon  after  the  death  of  deceased.  While  it  is  necessary  that 
the  character  of  the  instrument  used  in  producing  death  should  be  al- 
leged in  the  indictment  and  described,  and  that  the  proof  must  agree 
with  the  allegations  of  the  indictment,  yet  it  is  not  essential  that  the 
testimony  should  prove  the  instrument  to  be  the  identical  one  charged, 
providing  the  death  was  produced  in  substantially  the  same  way.  It 
would  not  do  to  charge  the  defendant  with  the  crime  of  murder  by 
stabbing  with  a  knife,  and  prove  the  murder  to  have  been  actually 
committed  by  striking  with  a  club.  Nor  would  it  do  to  charge  the 
murder  to  have  been  committed  by  shooting  with  a  gun,  and  prov- 
ing the  act  to  have  been  by  choking  with  the  hand.  But  it  is  other- 
wise when  the  wound  is  produced  by  an  instrument  of  the  same  class ; 
as  where  it  is  charged  that  the  death  of  the  deceased  was  caused  by 
a  mortal  wound  on  the  head  inflicted  with  a  swingle,  but  it  was  proved 
that  the  death  was  caused  by  a  blow  on  the  head  by  a  piece  of  wood. 
Whart.  Crim.  Ev.  §  93. 

In  1  Whart.  Crim.  Law,  §  519,  it  is  said:  "The  common-law  rule  in 
pleading  an  instrument  of  death  is  that,  where  the  instrument  laid  and 

8  9  Part  of  this  case  is  omitted. 


320  TRIAL.  (Ch.  12 

the  instrument  proved  are  of  the  same  nature  and  character,  there  is 
no  variance ;  where,  if  they  are  opposite  nature  and  character,  the  con- 
trary." "But  if  it  be  proved  that  the  deceased  was  killed  by  any  other 
instrument,  as  with  a  dagger,  sword,  staff,  bill,  or  the  like,  capable 
of  producing  the  same  kind  of  death  as  the  instrument  stated  in  the 
indictment,  the  variance  will  not  be  material."  It  is  very  clear  that 
"bolt,  bludgeon,  or  club"  would  be  the  same  class  or  character  of  in- 
strument, and  would  produce  the  same  class  or  character  of  wound  by 
striking,  and  there  would  be  no  variance  from  the  allegation  that  death 
was  produced  by  a  bludgeon.  The  instruction  of  the  court  was  there- 
fore correct.^**     *     *    * 


WALKER  V.  STATE. 

(Supreme  Court  of  Alabama,  1882.     73  Ala.  17.) 

The  defendant  in  the  lower  court,  appellant  here,  was  indicted  for 
an  assault  and  battery  "with  a  weapon,  to  wit,  a  gun,"  and  was  con- 
victed of  an  assault.  The  evidence  for  the  state  tended  to  show  that 
the  defendant  was  guilty  of  an  assault  and  battery  on  the  prosecutrix, 
but  failed  to  show  whether  or  not  a  weapon  was  used.  The  defend- 
ant made  a  statement  under  the  statute,  which  tended  to  show  that  at 
the  time  of  the  alleged  difficulty  he  had  a  gun,  but  that  he  did  not  strike 
the  prosecutrix  with  it,  or  attempt  to  use  it.  The  court  charged  the 
jury,  among  other  things,  that  they  "might  find  the  defendant  guilty  of 
an  assault  with  a  weapon,  or  of  an  assault  and  battery,  or  of  an  assault, 
as  they  might  determine  from  the  evidence."  To  this  charge  the  de- 
fendant excepted ;   and  it  is  here  assigned  as  error. 

SoMERViLivE,  J.  The  indictment  charges  the  defendant  with  having 
assaulted  and  beat  the  prosecutrix  "with  a  weapon,  to  wit,  a  gun." 

The  rule  is  that  the  mode  of  committing  an  offense  must  generally 
be  proved  as  laid  in  the  indictment,  at  least  in  substance.  Roscoe's  Cr. 
Ev.  89,  90.  This  principle  embraces  the  instrument  through  the  agency 
of  which  the  crime  is  perpetrated.  The  evidence  must  show  it  to  be 
of  the  same  substantial  nature  with  the  description  given.  Precise 
conformity  in  every  particular  is  never  demanded,  but  it  must  be  shown 
to  correspond  in  general  character  and  operation  with  the  averments  of 
the  indictment.  Such  matters  of  description,  even  though  alleged  with 
unnecessary  particularity,  often  become  essential  to  the  fact  of  identity. 
Whart.  on  Cr.  Ev.  (8th  Ed.)  §§  91,  92;  1  Greenl.  on  Ev.  §  65. 

It  is  clear  that  if  an  indictment  charges  an  assault  and  battery  with  a 
weapon,  as  is  the  case  here,  and  the  evidence  shows  that  the  offense 
was  committed  without  a  weapon,  as  with  the  hand  or  fist,  there  is  a 

90  The  judgment  was  reversed  on  otlier  grounds. 

See,  also,  State  v.  Gould,  90  N.  C.  658  (1884);  Hull  v.  State,  79  Ala.  32 
(1885) ;  State  v.  Weddington,  103  N.  C.  364,  9  S.  E.  577  (1889) ;  Rodgers  v. 
State,  50  Ala.  102  (1874). 


Ch.  12)  TRIAL.  321 

fatal  variance.  The  charge  oi  the  court  was  erroneous  in  refusing  to 
recognize  this  principle.  Johnson  v.  State,  35  Ala.  363 ;  1  Bish.  on 
Cr.  Proc.  §§  485,  486 ;  Rodgers'  Case,  50  Ala.  102 ;  1  East,  P.  C.  341 ; 
Filkins  v.  People,  69  N.  Y.  101,  25  Am.  Rep.  143 ;  Whart.  on  Cr.  Ev. 
§§  91,  92;  1  Greenl.  on  Ev.  §  65. 
Reversed  and  remanded. 


JOHNSON  V.  STATE. 

(Supreme  Court  of  Alabama,  18G0.    35  Ala.  3G3.) 

Stond,  J.^^  *  *  *  'j^j^g  indictment  in  this  case  charges  that 
the  assault  upon  Berry  Freeman  was  committed  by  striking  at  him 
with  a  stick.  The  proof  fails  to  show  a  striking  at  Berry  Freeman,  but 
only  shows  an  attempt  or  offer  to  strike.  This  record,  then,  presents 
the  familiar  principle  of  unnecessary  particularity  of  averment.  Being 
descriptive  of  the  offense,  it  became  necessary  to  prove  it  as  laid.  The 
testimony  failing  in  this  particular,  there  was  a  variance  between  the 
averment  and  the  proof.  If  the  indictment  had  charged  that  the  de- 
fendant made  an  assault,  and  struck  at,  etc.,  it  is  probable  the  doctrine 
of  surplusage  would  apply.  But  the  averment  did  not  take  that  form. 
See  Smith  v.  Causey,  28  Ala.  655,  65  Am.  Dec.  372 ;  Lindsay  v.  State, 
19  Ala.  560;  Commonwealth  v.  Gallagher,  6  Mete.  (Mass.)  565; 
Roscoe's  Cr.  Ev.  §§  102-104 ;   2  Russ.  on  Cr.  788,  794,  795. 

For  the  variance  between  the  averment  and  the  proof,  the  judgment 
of  the  circuit  court  is  reversed,  and  the  cause  remanded. 


FILKINS  V.  PEOPLE. 
(Court  of  Appeals  of  New  York,  1877.    69  N.  Y.  101,  25  Am.  Rep.  143.) 

Allen,  J.®^  The  plaintiff  in  error  was  convicted  in  the  Superior 
Court  of  the  city  of  Buffalo  of  a  felonious  assault  upon  one  Taylor 
with  "a  pitchfork,  a  sharp,  dangerous  weapon,"  without  justifiable  or 
excusable  cause,  and  with  intent  to  do  bodily  harm  to  said  Taylor.  *  *  * 

It  appeared  upon  the  trial  that  a  controversy  existed  between  the  ac- 
cused and  one  Carpenter  in  respect  to  some  fifty  mules ;  the  latter 
claiming  a  lien  upon  them  for  their  keeping,  and  the  former  claiming 
them  in  right  of  and  as  the  agent  or  bailee  of  his  wife,  the  general 
owner. 

At  the  time  of  the  alleged  assault  they  were  in  a  barn  owned  by  one 
Rogers,  and  in  that  half  of  it  which  there  was  evidence  to  prove  had 
been  rented  by  Filkins,  and  although  Carpenter  testified  that  he  had, 

»i  Part  of  this  case  is  omitted. 
Mik.Cb.Pb.— 21 


322  TRIAL.  (Ch.  12 

in  his  own  name,  rented  one-half  of  the  barn  from  the  owner,  there 
can  be  but  httle  doubt  that  Filkins  was  the  tenant  in  possession  of  the 
premises,  and  thus  in  actual  possession  of  the  mules.     *     *     * 

Filkins  saw  that  several  of  the  mules  had  been  taken  out  of  the  barn 
and  were  being  led  away,  and  sought  to  prevent  the  removal  of  the 
residue,  but  with  the  aid  of  a  single  man,  and  against  the  force  opposed 
to  him,  was  unable  to  close  the  barn.  He  found  Taylor  in  the  act  of 
taking  one  of  the  mules  from  the  stall,  and  with  a  pitchfork  which  he 
had  in  his  hand  struck  him  twice  on  or  over  the  head. 

The  assault  was  by  a  blow,  as  with  a  stick  or  club,  and  not  by  push- 
ing or  thrusting  with  the  tines. 

As  used,  the  weapon  was  no  more  dangerous  than  it  would  have 
been  if  there  had  been  buttons  on  the  tines  to  prevent  their  puncturing 
the  flesh,  or  than  would  have  been  a  knife  held  by  the  blade,  the  holder 
striking  with  the  handle. 

A  blow  thus  given  with  the  handle  of  a  knife  would  not  be  an 
assault  with  a  knife  or  sharp  instrument,  within  the  statute,  any  more 
than  would  an  attempt  to  discharge  a  loaded  gun,  the  touch-hole  of 
which  was  plugged,  be  an  ofifense  under  the  English  statute  making  it 
criminal  to  attempt  to  discharge  a  loaded  gun  at  another.  Rex  v. 
Harris,  5  C.  &  P.  159  ;  1  Russ.  on  Cr.  979  (marg.  T25).      *     *     * 

Judgment  reversed."^ 


ENSON  V.  STATE. 
(Supreme  Court  of  Florida,  1909.    58  Fla.  37,  50  South.  048.) 

Parkhill^  J.®*  The  plaintiff  in  error  was  convicted  of  the  crime 
of  grand  larceny,  and  brings  the  judgment  here  by  writ  of  error  for 
review.    *     *    * 

At  the  close  of  the  evidence  the  defendant  requested  the  judge  to 
give  the  following  instruction  to  the  jury:  "The  defendant  in  this 
case  is  charged  with  stealing  certain  bank  bills  and  notes  known  as 
lawful  currency  of  the  United  States  of  divers  denominations,  the 
number  and  denominations  of  which  are  alleged  to  be  unknown  to  the 
county  solicitor,  and  also  certain  silver  specie,  a  more  particular 
description,  it  is  alleged,  is  unknown  to  the  county  solicitor,  said  prop- 
erty being  alleged  to  be  of  the  aggregate  value  of  $100.  It  appears 
from  the  evidence  that  the  county  sohcitor  knew  or  could  easily  have 
known  a  better  description  at  the  time  of  the  filing  of  the  information 
than  the  description  set  forth  in  the  said  information.  There  is,  there- 
fore, a  fatal  variance,  and  you  will  accordingly  find  a  verdict  of  not 
guilty." 

8  3  See.  also,  Couimon\Yealth  v.  Buckley,  ante,  p.  148;  Rex  v.  Foster,  ante, 
p.  150 :  Regina  v.  Davis,  ante,  p.  151 :  Rex  v.  Kettle,  ante,  p.  154 ;  State  v. 
Bassett,  ante,  p.  156;    Regina  v.  Drake,  ante,  p.  159. 

»*  Part  of  this  case  is  omitted. 


Ch.  12)  TRIAL.  32:i 

This  instruction  was  properly  refused,  for  the  reason  that  there  was 
no  evidence  that  the  county  sohcitor  knew  the  number  and  denomina- 
tion of  the  bank  bills  or  a  more  particular  description  of  the  silver 
specie  alleged  to  have  been  stolen,  and  the  instruction  erroneously 
predicated  defendant's  right  to  an  acquittal  on  the  fact  that  the  county 
solicitor  could  easily  have  known  a  better  description  of  the  property 
than  that  given  in  the  information.  It  asked  too  much.  The  question 
here  is  whether  the  allegation  that  a  more  particular  description  of  the 
bank  notes  and  specie  was  unknown  to  the  county  solicitor  is  sustained 
by  the  proof,  not  whether  the  county  solicitor  could  easily  have  known 
a  better  description. 

In  some  jurisdictions  the  rule  is  stated  to  be  that  a  variance  results" 
where  it  becomes  apparent  from  the  evidence  that  the  matter  alleged  as 
unknown  might  have  been  discovered  by  the  exercise  of  ordinary  dili- 
gence ;  but  these  cases  would  seem  to  be  properly  placed  upon  lack  of 
diligence  or  carelessness  in  making  the  accusation,  and  not  upon 
variance  between  the  allegation  and  proof.  The  better  rule  would 
seem  to  be  that  to  create  a  variance  the  fact  of  knowledge,  not  ability 
to  acquire  knowledge,  must  affirmatively  appear  from  the  evidence. 
The  information  alleges  that  a  more  particular  description  of  the  prop- 
erty is  unknown  to  the  solicitor.  It  becomes  a  question,  then,  upon  all 
the  evidence,  of  accord  or  variance  between  this  allegation  and  the 
proof,  not  of  diligence  or  carelessness  in  making  the  accusation. 

It  is  doubtless  true  that,  under  the  plea  of  not  guilty,  the  allegation 
of  want  of  knowledge  of  a  better  description  of  the  property  on  the 
part  of  the  county  solicitor  is  traversable  and  the  subject  of  inquiry, 
and  that  an  indictment  false  in  this  respect  would  not  support  a  con- 
viction. But  the  defendant  desires  to  go  beyond  the  allegation  of  the 
information  and  raise  the  outside  issue  that  the  solicitor  could  easily 
have  known  a  better  description  of  the  property.  The  fact  that  the 
county  solicitor  could  easily  have  ascertained  a  better  description  of  the 
property  may  be  evidence  that  he  knew  the  same ;  but  it  is  not  conclu- 
sive, and  cannot  be  made  an  absolute  test  of  the  sufficiency  of  the  alle- 
gation that  he  did  not  know.  22  Cyc.  465 ;  Commonwealth  v.  Sher- 
man, 13  Allen  (Mass.)  218;  Commonwealth  v.  Hill,  11  Cush.  (Alass.) 
137,  text  141;  Commonwealth  v.  Hendrie,  2  Gray  (Mass.)  503; 
Commonwealth  v.  Thornton,  14  Gray  (Mass.)  41;  Commonwealth 
V.  Stoddard,  9  Allen  (Mass.)  280,  text  282,  283;  Commonwealth 
V.  Noble,  1G5  Mass.  13,  42  N.  E.  328;  Wells  v.  State,  88  Ala. 
239,  7  South.  272;  Duvall  v.  State,  03  Ala.  12;  Terrv  v.  State. 
118  Ala.  79,  23  South.  776 ;  Winter  v.  State,  90  Ala.  637,  8  South.  556  ; 
White  v.  People,  32  N.  Y.  465;  Noakes  v.  People,  25  N.  Y.  380; 
People  V.  Noakes,  5  Parker,  Cr.  R.  (N.  Y.)  292;  People  v.  Fleming, 
60  Hun,  576,  14  N.  Y.  Supp.  200;  State  v.  Carey,  15  Wash.  549, 
46  Pac.  1050;  Rex  v.  Walker,  3  Camp.  264.  See,  also,  Guthrie  v. 
State,  16  Neb.  667,  21  N.  W.  455;  Coffin  v.  United  States,  156  U.  S. 
432,  15  Sup.  Ct.  394,  39  L.  Ed.  481;   Rex  v.  Bush,  Russ.  &  R.  C.  C. 


324  TRIAL.  (Ch.  12 

372;  Lang  v.  State,  42  Fla.  595,  28  South.  856;  Com.  v.  Gallagher, 
126  Mass.  54. 

In  discussing  this  question,  the  Supreme  Court  of  Massachusetts, 
in  Commonwealth  v.  Sherman,  supra,  said: 

"The  origin  of  the  statement  in  some  books  that,  if  a  name  alleged 
to  be  unknown  might  with  reasonable  diligence  have  been  ascertained 
by  the  prosecutor,  the  defendant  is  entitled  to  an  acquittal,  is  probably 
to  be  found  in  some  imperfect  reports  of  English  nisi  prius  cases.  2 
East,  P.  C.  c.  16,  par.  89.  King  v.  Deakin,  2  Leach  (4th  Ed.)  863; 
Rex  V.  Walker,  3  Camp.  264;  Rex  v.  Robinson,  Holt,  N.  P.  C.  595. 
Upon  such  a  case  being  cited  Mr.  Justice  Littledale,  an  eminent  com- 
mon-law lawyer,  said :  'The  question  is  whether  the  person  is  known 
to  the  grand  jury.  It  will  be  difficult  to  prove  that  he  was  so  known, 
and  unless  he  was  known  to  the  grand  jury,  I  should  doubt  about  that 
case.'  Rex  v.  Cordy,  2  Russell  on  Crimes  (3d  Ed.)  98,  note  by  Greaves, 
The  earliest  case  which  we  have  seen  in  which  a  traverse  jury  were  re- 
quired to  find  that  the  grand  jury  could  not  by  reasonable  diligence 
have  ascertained  the  name  was  one  tried  at  nisi  prius  before  Mr.  Justice 
Thomas  Erskine.     Regina  v.  Campbell,  1  Car.  &  Kirw.  82. 

"By  the  much  higher  authority  of  the  twelve  judges  of  England, 
this  matter  has  been  put  upon  the  right  footing.  In  one  case  they 
held  that  an  indictment  against  an  accessory  of  a  principal  therein 
alleged  to  be  unknown  was  good,  although  the  same  grand  jury  had 
returned  another  indictment  against  the  principal  by  name.  Rex  v. 
Bush,  Russ.  &  Ry.  372.  And  in  another  case,  according  to  the  fullest 
report,  they  stated  the  rule  to  be  that,  'in  order  to  sustain  a  count  for 
the  murder  of  a  child  whose  name  is  to  the  jurors  unknown,  there 
must  be  evidence  showing  that  the  name  could  not  reasonably  have 
been  supposed  to  be  known  to  the  grand  jury.'  Regina  v.  Stroud,  1 
Car.  &  Kirw.  187.  Another  report  of  this  case  in  2  Mood.  C.  C.  270, 
by  abridging  this  statement  to  'the  want  of  description  is  only  excused 
when  the  name  cannot  be  known,'  wholly  changes  its  meaning;  for 
what  the  grand  jury  may  reasonably  be  supposed  to  have  known  is 
only  what  it  may  be  rightly  inferred  they  did  know,  which  is  a  quite 
distinct  thiiig  from  that  which  they  could  know,  or,  in  other  words, 
reasonably  might,  but  did  not,  ascertain.  The  judgments  of  this  court 
support  the  position  which  we  now  affirm.  Common  .vealth  v.  Hill, 
11  Cush.  (Mass.)  141;  Commonwealth  v.  Hendrie,  2  Gray  (Mass.) 
504;  Commonwealth  v.  Thornton,  14  Gray  (Mass.)  41;  Common- 
wealth V.  Stoddard,  9  Allen  (Mass.)  282,  283. 

"It  is  always  open  to  the  defendant  to  move  the  judge  before  whom 
the  trial  is  had  to  order  the  prosecuting  attorney  to  giv^  a  more  par- 
ticular description  in  the  nature  of  a  specification  or  bill  of  particulars, 
of  the  acts  on  which  he  intends  to  rely,  and  to  suspend  the  trial  until 
this  can  be  done ;  and  such  an  order  wull  be  made  whenever  it  appears 
to  be  necessary  to  enable  the  defendant  to  meet  the  charge  against 
him,  or  to  avoid  danger  of  injustice.    Commonwealth  v.  Giles,  1  Gray 


Ch.  12)  TRIAL.  325 

(Mass.)  469;   The  King  v.  Gurwood,  3  Ad.  &  El.  815;   Rose.  Crim. 
Ev.  (6th  Ed.)  1?8,  l?y,  420." 

As  sustaining  the  right  of  the  defendant  to  a  bill  of  particulars  upon 
a  proper  showing  in  this  state,  see  Mathis  v.  State,  45  Fla.  46,  34 
South.  287 ;  Thalheim  v.  State,  38  Fla.  169,  20  South.  938 ;  Eatnian 
V.  State,  48  Fla.  21,  37  South.  576;  Brass  v.  State,  45  Fla.  1,  34 
South.  307. 

Our  statute  makes  bank  notes  and  money  the  subject  of  larceny, 
and  where  the  required  degree  of  certainty  cannot  be  used  in  specifying 
the  pieces  or  denominations  of  coins  stolen  or  the  number  and  denomi- 
nation of  bank  bills,  it  will  be  enough  to  state  that  a  better  description 
than  that  given  is  unknown  to  the  county  solicitor,  or  to  the  grand 
jury,  as  the  case  may  be.    12  Ency.  PI.  &  Pr.  990.     *     *     * 

Taylor,  J.  (dissenting).  *  *  *  According  to  my  view  of  the 
law,  there  was  a  fatal  variance  between  the  allegation  and  the  proofs, 
that  entitled  the  defendant  to  his  discharge.  The  true  rule  in  such 
cases,  according  to  my  view,  the  one  supported  both  by  reason  and  the 
overwhelming  weight  of  authority,  is  that  it  is  only  permissible  upon 
the  ground  of  necessity  to  allege  in  an  indictment  that  the  name  of  a 
person  or  fact  necessary  to  be  stated  is  unknown ;  and  the  defendant 
is  entitled  to  be  discharged  when  it  appears  on  the  trial  that  the  name 
or  the  fact  either  was  known  or  could  by  the  exercise  of  ordinary  dil- 
igence have  become  known  to  the  grand  jury  or  prosecuting  attorney 
exhibiting  the  information.  State  v.  Stowe,  132  Mo.  199,  33  S.  W. 
799  ;  State  v.  Thompson,  137  Mo.  620,  39  S.  W.  83. 

The  allegation  in  an  indictment  that  the  name  of  a  person,  or  a  fact, 
is  unknown  to  the  grand  jurors,  or  to  the  prosecuting  officer  exhib- 
iting an  information,  is  a  material  one,  is  traversed  by  the  plea  of  not 
guilty,  and  must  be  sustained,  and  may  be  rebutted  by  proof.  Cameron 
V.  State,  13  Ark.  712 ;  Blodget  v.  State,  3  Ind.  403 ;  Cheek  v.  State, 
38  Ala.  227 ;  Rex  v.  Robinson,  1  Holt,  N.  P.  595,  s.  c.  3  E.  C.  L.  233 ; 
Reg.  V.  Campbell,  1  Carr.  &  K.  82,  47  E.  C.  L.  80 ;  Rex  v.  Walker, 
3  Camp.  N.  P.  265 ;  Reg.  v.  Stroud,  2  Moody,  C.  Cas.  270 ;  Winter  v. 
State,  90  Ala.  637,  8  South.  556 ;  United  States  v.  Riley  (C.  C.)  74 
Fed.  210 ;  Sault  v.  People,  3  Colo.  App.  502,  34  Pac.  263 ;  1  Chitty's 
Crim.  Law,  213  ;   Presley  v.  State,  24  Tex.  App.  494,  6  S.  W.  540. 

The  facts  alleged  in  the  information  to  have  been  unknown  to  the 
prosecutor  were  material  facts  that  the  defendant  had  the  legal  right 
to  demand  an  allegation  of  in  the  information.  If  these  facts  were  in 
truth  unknown  to  the  prosecutor,  and  could  not  with  ordinary  diligence 
have  been  ascertained  by  him,  then,  and  not  until  then,  did  the  necessity 
arise  or  exist,  which  the  law  recognizes,  permitting  such  facts  to  be 
alleged  as  being  unknown.  All  the  authorities  agree  that  the  allega- 
tion in  an  indictment  to  the  effect  that  a  name  or  a  fact  is  unknown 
is  a  material  averment,  upon  which  issue  is  joined  by  the  plea  of  not 
guilty,  and  I  cannot  agree  with  the  few  courts  sustaining  the  majority 
opinion  in  their  holdings  to  the  effect  that,  if  there  is  no  proof  either 


326  TRIAL.  (Ch.  12 

way  as  to  whether  the  fact  alleged  to  have  been  unknown  was  either 
known  or  unknown,  the  question  is  immaterial,  and  the  defendant  has 
no  right  to  any  advantage  therefrom,  and  that  the  burden  in  such  cases 
is  on  the  defendant  to  prove,  if  he  can,  that  the  alleged  unknown  fact 
was  in  truth  known  to  the  grand  jury  or  prosecutor. 

I  had  thought  that  the  law  had  been  settled  for  ages  that  the  burden 
was  on  the  prosecution  to  prove  every  material  averment  in  the  indict- 
ment; but  the  holdings  of  these  courts  in  this  respect  is  a  long  step 
towards  an  uprooting  of  all  the  old  landmarks  that  bound  the  haven  of 
presumptive  innocence  until  all  material  averments  charging  guilt  are 
affirmatively  established.  My  view  is  that,  when  an  indictment  alleges 
that  a  material  fact  is  unknown  to  the  grand  jury  or  prosecuting  officer, 
the  burden  is  on  the  prosecution  to  show  that  such  fact  was  in  truth 
unknown,  and  could  not  with  ordinary  diligence  have  been  ascertained, 
and  that  if  such  proof  is  not  made  there  can  be  no  conviction  on  such 
indictment. 


SECTION  9.— \^ERDICT 


If  they  [the  jurors]  cannot  all  agree  in  one  mind,  let  them  be  sepa- 
rated and  examined  why  they  cannot  agree;  andl  if  the  greater  part 
of  them  know  the  truth  and  the  other  part  do  not,  judgment  shall  be 
according  to  the  opinion  of  the  greater  part. 

Britton  (Nichols)  lib.  1,  12b. 


ANONYMOUS. 

(Court  of  Common  Bench,  13G7.     Lib.  As.s.  2.j3,  pi.  11.) 

In  another  Assize  before  the  same  Justices  at  Northampton  the 
Assize  was  sworn,  and  they  were  all  agreed  except  one  who  would  not 
agree  with  the  eleven ;  and  then  they  were  remanded,  and  remained 
there  all  that  day  and  the  next  without  drink  or  food.  And  then  it  was 
demanded  of  him  by  the  Justices  if  he  would  agree  with  his  com- 
panions. He  said  never.  That  he  would  die  first  in  prison.  And 
upon  this  a  day  was  given  on  the  same  verdict  in  the  Common  Bench. 
Kirk  prayed  judgment  on  the  verdict.  Thorp  said  they  were  all  in 
accord  that  this  was  not  a  proper  verdict  taken  of  eleven,  no  verdict 
could  be  taken  of  eleven.  Nevertheless  Kirk  showed  how  Wilby  in 
trespass  took  the  verdict  of  eleven  and  sent  the  twelfth  to  prison,  and 
the  attaint  was  sued  against  the  eleven.  And  also  W.  Thorp  in  an 
assize  in  the  twentieth  year  of  the  present  King  took  the  verdict  of 
twelve  (sic).     Thorp.     This  is  not  a  precedent  for  us,  for  he  was 


Cll-  i2)  TRIAL. 


327 


greatly  reproved  for  that.  And  afterward  by  assent  of  all  the  Justices 
It  was  agreed  that  this  was  not  a  proper  verdict.  Wherefore  it  was  de- 
cided that  this  panel  should  be  quashed  and  annulled  and  that  he 
who  was  in  prison  should  be  released  and  that  the  plaintiff  should  sue 
out  a  new  venire  to  summon  the  Assize. ^= 


When  the  jury  have  come  to  a  unanimous  determination  with 
respect  to  their  verdict,  they  return  to  the  box  to  deliver  it.  The  clerk 
then  calls  them  over  by  their  names,  and  asks  them  whether  they  are 
agreed  on  their  verdict,  to  which  they  reply  in  the  affirmative.  He 
then  demands  who  shall  say  for  them,  to  which  they  answer,  their 
foreman.  This  being  done,  he  desires  the  prisoner  to  hold  up  his  hand, 
and  addresses  them :  "Look  upon  the  prisoner,  you  that  are  sworn. 
How  say  you,  is  he  guilty  of  the  felony  (or  treason,  etc.)  whereof  he 
stands  indicted,  or  not  guilty?"  If  they  say,  "Guilty,"  then  he  asks 
them,  "What  lands  or  tenements,  goods  or  chattels  the  prisoner  had 
at  the  time  of  the  felony  committed,  or  at  any  time  since?"  to  which 
they  commonly  reply,  "None  to  our  knowledge."  If  they  say,  "Not 
guilty,"  then  the  clerk  asks  them  "whether  he  did  fly  for  it  or  not." 
They  commonly  answer,  "not  to  our  knowledge,"  but,  if  they  find  a 
flight,  it  is  recorded.  The  officer  then  writes  the  word  "guilty"  or 
"not  guilty,"  as  the  verdict  is,  after  the  words  "po.  se."  on  the  record ; 
and  again  addresses  the  jury:  "Hearken  to  your  verdict  as  the  court 
hath  recorded  it.  You  say  that  A.  B.  is  guilty  (or  not  guilty)  of  the 
felony  whereof  he  stands  indicted,  and  that  he  hath  no  goods  or 
chattels,  and  so  you  say  all."     *     *     * 

The  verdict  thus  given  is  either  general  to  the  whole  of  the  charge, 
partial  as  to  a  part  of  it,  or  special,  where  the  facts  of  the  case  alone 
are  found,  and  the  legal  inference  is  referred  to  the  judges. 

1  Chitty,  Criminal  Law,  635. 

9  5  -'The  parties  to  the  litigation  have  'put  themselves'  upon  a  certain  test. 
That  test  is  the  voice  of  the  country.  Just  as  a  corijoration  can  have  but 
one  will,  so  a  country  ican  have  but  one  voice — 'le  pays  vint  e  dyt.'  In  a  later 
age  this  communal  principle  might  have  led  to  the  acceptance  of  the  major- 
ity's verdict.  But  as  yet  men  had  not  accepted  the  dogma  that  the  voice  of  a 
majority  binds  the  community.  In  commimal  affairs  they  demanded  unanim- 
ity ;  but  minorities  were  expected  to  give  way.  Then  at  this  point  the  "quasi 
judicial'  position  of  the  jurors  becomes  important.  No  doubt  it  would  be 
wrong  for  a  man  to  acquiesce  in  a  verdict  that  he  knew  to  l>e  false;  ibut  in 
the  common  case — and  it  becomes  commoner  daily — many  of  the  jurors  really 
have  no  tirst-hand  knowledge  of  the  facts  about  which  they  speak,  and  there 
is  no  harm  in  a  juror's  joining  in  a  verdict  which  expresses  the  belief  of 
those  of  his  fellows  who  do  know  something.  Thus  a  professed  unanimity  is, 
as  our  .rolls  show,  very  easily  produced.  Nor  nuist  it  escape  us  that  the 
justices  are  pursuing  a  course  which  puts  the  verdict  of  the  country  on  a  level 
with  the  older  modes  of  proof.  If  a  man  came  clean  from  the  ordeal  or  suc- 
cessfully made  his  law,  the  due  proof  would  have  been  given ;  no  one  could 
have  questioned  the  dictum  of  Omniscience.  The  veredictum  patri:e  is  assim- 
ilated to  the  judicium  Dei.  English  judges  find  that  a  reipiirenient  of  unanim- 
ity is  the  line  of  least  resistance;  it  spares  them  so  much  trouble."  2  Tollock 
&  Maitland,  History  of  English  Law,  p.  024. 


328  TRIAL.  (Ch.  12 

REX  V.  LEGINGHAM. 

(Court  of  King's  Bench,  1670.    2  Keb.  GST.) 

Stroud  on  1  Inst.  227,  b,  prayed  to  set  aside  a  privy  verdict  on  infor- 
mation for  unreasonable  distress,  sed  non  allocatur,  for  unless  in  cases 
of  Felony,  where  the  Party  must  be  present  at  the  delivery,  it  may  be 
private,  and  so  hath  been  the  constant  practice  of  forty  years,  as  well 
where  the  King  alone  is  Party,  as  in  Actions  qui  tarn ;  but  the  Court 
conceived  that  no  information  lieth  for  this  offense,  unless  it  be  said 
as  common  Oppressor  or  Barretor ;  also  privy  verdict  may  be  out  of 
the  County  well  enough.    But  adjornatur. 


COMMONWEALTH  v.  GIBSON. 

(General  Court  of  Vh-ginia,  1817.    2  Va.  Cas.  70.) 

The  prisoner  was  convicted  of  murder  in  the  second  degree,  and 
five  years  fixed  on  as  the  term  of  his  imprisonment.  When  brought 
up  to  receive  his  sentence,  he  moved  the  court  "to  set  aside  the  pre- 
tended verdict  alleged  to  be  rendered  against  him,  because  the  said  pre- 
tended verdict  is  not  the  verdict  of  the  jury  sworn  to  try  the  prisoner, 
one  of  the  jurors  being  absent  from  the  rest,  and  out  of  the  presence 
of  the  court  at  the  time  the  said  pretended  verdict  was  received  in  the 
court,  and  at  the  time  the  jurors  were  discharged  by  the  court,  which 
was  not  known  to  the  said  prisoner,  or  his  counsel,  at  the  time  of  the 
rendition  and  reception  of  the  said  pretended  verdict.  He  also  moved 
the  court  to  set  aside  the  verdict  (this  ought  to  have  been  a  motion 
to  arrest  the  judgment),  for  that  "he  ought  not  by  the  laws  of  the  land 
to  be  convicted  of  murder  on  the  said  indictment,  the  same  being  by 
law  insufficient  to  charge  him  with  the  said  crime."  In  support  of  his 
first  proposition,  he  introduced  Charles  Woodson,  one  of  the  jurors, 
who,  being  sworn,  said  that  he  came  into  court  with  the  rest  of  the 
jurors,  after  having  agreed  to  a  verdict  against  the  prisoner,  which 
was  subscribed  by  Oglesby  Scruggs,  and  that  he  remained  in  court 
until  the  jurors'  names  were  all  called  over,  and  severally  answered  to, 
and,  the  clerk  asking  if  the  jury  had  agreed,  it  was  answered  they  had, 
and  the  jury  directed  to  look  upon  the  prisoner,  and,  being  asked 
if  the  prisoner  was  guilty  or  not,  it  was  answered  guilty,  and  the  ver- 
dict delivered  to  the  clerk,  and  the  same  that  had  been  agreed  to  in 
the  jury  room,  read  aloud  in  open  court;  that  being  sick,  and  at  this 
moment  Hkely  to  faint,  he  requested  one  of  the  deputy  sheriffs  who 
was  standing  near  him,  in  the  rear  of  the  jury,  to  attend  him,  and 
stepped  into  the  jury  room,  where  he  laid  down,  and  there  remained 
until  the  jury  were  discharged ;  that  he  was  not  present  in  court  at  the 
discharge.    Nor  was  he  present  when  any  alteration  in  the  phraseology 


Ch.  12)  TRIAL.  329 

of  the  verdict  was  made  in  court,  nor  at  any  time  after  he  had  an- 
swered to  his  name,  and  heard  the  verdict  which  had  been  by  the  jury 
agreed  on,  in  their  room,  read  by  the  clerk  as  already  stated.     *     *     * 

The  evidence  introduced  by  the  prosecution  satisfied  the  court  that 
after  the  jury  came  into  court,  with  their  verdict  written  on  the 
indictment  and  subscribed  by  one  of  their  body,  they  were  called  over 
and  answered  severally  to  their  names,  declaring  that  they  had  agreed 
in  a  verdict,  and,  being  told  to  look  on  the  prisoner,  they  said  he 
was  guilty;  the  verdict  was  then  delivered  to  the  clerk,  and  by  him 
read  aloud  in  open  court;  the  jury  were  not  then  immediately  dis- 
charged by  order  of  court,  but  some  alteration  in  the  terms  of  the 
verdict  being  suggested  by  the  prosecutor,  so  as  to  make  it  read 
"public  jail  and  penitentiary  house,"  instead  of  "penitentiary,"  the 
clerk  was  ordered  to  make  it  in  the  presence  of  the  court  and  jury. 
At  this  time  it  was  not  known  that  one  of  the  jury  had  withdrawn. 
The  clerk,  to  effect  the  alteration,  wrote  a  verdict  at  large  on  the  same 
indictment,  in  these  words:  "We  of  the  jury  find  the  prisoner  guilty 
of  murder  in  the  second  degree,  and  ascertain  the  term  of  his  confine- 
ment in  the  public  jail  and  penitentiary  house  to  be  five  years,"  which 
was  subscribed  by  WilHam  Watson,  another  of  the  jurors,  and  read 
aloud  in  open  court,  assented  to  by  the  jurors  present,  and  the  whole, 
being  supposed  to  be  present,  were  then  discharged.  The  clerk  ran  his 
pen  across  the  verdict  delivered  in  by  the  jury  in  the  first  instance, 
without  being  directed  so  to  do,  that  he  might  know  which  to  regard 
in  making  up  the  record,  and  that  the  verdict  which  was  at  first  de- 
livered into  court,  and  read  as  above  stated,  being  the  verdict  agreed 
by  the  whole  jury,  is  in  these  words :  "We  of  the  jury  being  impaneled 
for  the  purpose  of  trying  Levi  Gibson  for  the  murder  of  his  brother, 
Francis  Gibson,  are  of  opinion  that  the  said  Levi  Gibson  is  guilty  of 
murder  in  the  second  degree,  and  that  he,  the  said  Levi  Gibson,  be 
confined  in  the  penitentiary  for  the  term  of  five  years."  Signed: 
"Oglesby  Scruggs." 

On  this  statement  and  evidence,  the  superior  court  adjourned  to 
this  court  the  following  questions : 

(1)  Can  this  court  disregard  the  verdict  which  was  written  in  court 
as  above  stated,  and  refer  to  the  verdict  which  was  first  delivered  by 
the  jury  into  court,  as  above  stated,  as  an  existing  verdict  of  the  jury 
in  the  terms  in  which  it  is  written?  If  so,  (2)  is  this  verdict  suffi- 
cient to  authorize  this  court  to  give  judgment  against  the  prisoner  that 
he  be  confined  in  the  "public  jail  and  penitentiary  house?"    *     *     *  »® 

The  following  is  the  judgment  of  Thic  Court: 

This  court  is  of  opinion,  and  doth  decide,  that  the  verdict  which 
was  written  in  court  is  a  nullity,  because  it  was  only  agreed  to  by 
eleven  jurors,  the  twelfth  juror  having  retired  from  the  court  before 
it  was  written  and  received,  and  that,  therefore,  the  superior  court 


96  Part  of  this  case  is  omitted. 


330  TRIAL.  (Cll.  12 

ought  to  disregard  the  said  verdict;  and  the  court  is  further  of  opinion 
that,  in  a  case  of  felony,  after  the  verdict  is  rendered  by  the  jury,  and 
read  in  open  court,  it  is  the  duty  of  tlie  clerk  to  direct  the  jury  to 
hearken  to  their  verdict  as  the  court  has  recorded  it,  and  then  to  repeat 
the  verdict  to  them,  and  either  to  poll  them,  or  to  say  to  them,  'And 
so  say  you  all,'  or  words  to  that  effect,  in  which  latter  case,  if  none  of 
the  jury  express  their  dissent,  the  verdict  ought  to  stand  as  recorded, 
and  thai  until  the  assent  of  the  jury  is  expressed  in  one  of  these  ways 
the  jury  has  a  right  to  retract;  and  until  after  the  assent  of  the  jury 
is  expressed  as  aforesaid,  the  verdict  is  not  perfected ;  that  the  first 
verdict  rendered  in  this  case  was  imperfect  in  these  particulars,  and 
therefore  no  judgment  can  be  rendered  on  it.     =;=     *     * 

This  court  is  further  of  opinion  that,  the  verdict  being  imperfect,  it 
ought  to  be  set  aside,  and  a  venire  facias  de  novo  awarded,  and  a  new 
trial  had  of  the  prisoner,  either  on  this  indictment,  as  an  indictment 
for  manslaughter,  or  on  a  new  indictment  for  murder,  which  is  or- 
dered to  be  certified,  etc. 


STATE  V.  DAWKINS  et  al. 

(Supreme  Court  of  South  Carolina,  1890.    32  S.  C.  17,  10  S.  E.  772.) 

McIvER,  J.^^  *  *  *  fi^Q  ninth  and  tenth  grounds  of  appeal 
question  the  legality  of  the  course  pursued  in  the  court  below  after  the 
verdict  had  been  rendered,  and  the  jury  discharged  from  the  case,  by 
reimpaneling  them  the  next  day,  for  the  purpose  of  giving  them  in- 
structions, inadvertently  omitted  before,  as  to  their  power  to  recom- 
mend to  mercy,  and  the  effect  of  such  recommendation.  We  do  not 
know  of  any  authority  for  such  a  proceeding,  and  none  has  been  cited. 
While  we  have  no  doubt  whatever  that  the  course  pursued  in  this  in- 
stance was  prompted  by  the  best  motives,  and  was  really  designed  to 
give  the  defendants  the  benefit  of  a  merciful  provision  of  the  law, 
yet  we  feel  bound  to  regard  it  as  a  dangerous  innovation,  upon  well- 
settled  legal  principles,  and  one  which  is  not  sanctioned  by  any  law. 
After  a  jury  have  rendered  their  verdict,  andl  have  been  discharged, 
we  know  of  no  authority  by  which  they  can  be  reimpaneled,  and,  un- 
der further  instructions,  be  called  upon  to  render  a  new  and  different 
verdict.  Such  a  power,  once  recognized,  even  in  a  case  like  this,  where 
its  exercise  was  doubtless  intended  in  favor  of  liberty,  would  afford  a 
precedent  which  might  lead  to  the  most  dangerous  consequences.  But, 
without  pursuing  this  line  of  remark,  it  is  quite  sufficient  for  us  to 
say  that  it  is  without  authority  of  law.  We  must  therefore  regard  the 
second  so-called  "verdict"  as  an  absolute  nullity,  and  the  judgment, 
which  we  must  assume  was  rendered  upon  it,  as  without  legal  founda- 
tion, and  should  for  that  reason  be  set  aside. 

&"  Part  of  this  case  is  omitted. 


Cb.  12)  TRIAL.  331 

It  may  be  said,  however,  that  the  first  and  only  real  verdict  in  the 
case  would  be  sufficient  to  support  the  judgment.  But  it  must  be  re- 
membered that  by  the  express  terms  of  the  statute  (Gen.  St.  §  2481) 
the  only  judgment  which  would  be  legally  rendered  on  that  verdict 
would  be  imprisonment  in  the  penitentiary  with  hard  labor  for  life, 
and  any  other  judgment  would  be  erroneous  and  illegal ;  and,  if  so, 
then  our  plain  duty  is  to  reverse  it.  Now,  while  the  nature  of  the 
judgment  rendered  in  this  case  does  not  distinctly  appear  in  the  rec- 
ord, yet  we  are  bound  to  infer  from  what  does  there  appear  that 
the  judgment  actually  rendered  was  erroneous  and  illegal;  for  the 
act  of  1883,  amending  the  section  of  the  General  Statutes  above  re- 
ferred to,  expressly  declares  that  where  a  person  is  convicted  of  bur- 
glary at  common  law,  and  is  recommended  to  the  mercy  of  the  court 
ijy  the  jury,  the  punishment  shall  be  reduced  from  that  prescribed  by 
that  section  of  the  General  Statutes  prior  to  the  amendment.  And  as 
the  manifest  object  of  the  circuit  judge,  in  reimpaneling  the  jury,  was 
to  give  these  defendants  the  benefit  of  the  reduction  provided  for,  we 
are  forced  to  the  conclusion  that  the  judgment  rendered  was  based 
upon  the  second  so-called  "verdict." 

The  judgment  of  this  court  is  that  the  judgment  of  the  circuit  court, 
so  far  as  it  concerns  the  appellant,  William  Dawkins,  be  reversed,  and 
that  the  case  be  remanded  to  that  court  for  a  new  trial  as  to  said  Wil- 
liam Dawkins.  °* 


COMMONWEALTH  v.  TOBIN. 

(Supreme  Judicial  Court  of  Massachusetts,  Suffolk,  187S.     125  Mass.  203,  2S 

Am.  Kep.  220.) 

Indictment  for  manslaughter.  After  verdict  of  guilty  in  the  supe- 
rior court,  the  defendant,  on  the  same  day,  moved  to  set  aside  the  ver- 
dict.    *     *     '^' 

Gray,  C.  J.^''  By  the  law  of  England,  in  cases  of  felony,  the  only 
verdict  allowed  was  a  public  verdict  pronounced  by  the  foreman  in 
open  court,  and  in  the  presence  of  the  prisoner.  In  prosecutions  for 
misdemeanors,  and  in  civil  cases,  although  the  jury  were  permitted 
to  separate  upon  giving  a  privy  verdict  orally  to  the  judge  out  of 
court,  yet  such  verdict  was  of  no  force  unless  afterwards  affirmed  by 
an  oral  verdict  given  publicly  in  court,  and  the  only  effectual  and  legal 

OS  After  the  .inry  has  been  discharged,  it  is  too  late  for  a  jiiror  to  say  he 
did  not  assent  to  the  verdict.    Mercer  v.  State,  17  Ga.  140  (IS.")). 

'Under  our  statute  the  verdict  nuist  be  in  writing ;  but  this  does  not  dis- 


4  N.  W.  420  (1880). 

9  9  Part  of  this  case  is  omitted. 


332  TRIAL.  (Ch.  12 

verdict  was  the  public  verdict.  3  Bl.  Com.  377 ;  4  Bl.  Com.  360 ;  1 
Chit.  Crim.  Law,  635,  636. 

In  this  country,  by  way  of  substitute  for  a  privy  verdict,  and  to  at- 
tain the  same  end  of  allowing  the  jury  to  separate  after  they  have 
come  to  an  agreement,  a  practice  has  been  adopted  in  civil  actions, 
and  in  cases  of  misdemeanors,  at  least,  if  not  of  all  but  capital  crimes, 
of  directing  the  jury,  if  they  should  agree  during  the  adjournment 
of  the  court,  to  sign  and  seal  up  their  finding,  and  come  in  and  affirm 
it  at  the  next  opening  of  the  court ;  but  the  verdict  which  determines 
the  rights  of  the  parties,  and  is  admitted  of  record,  and  upon  which 
judgment  is  rendered,  is  the  verdict  received  from  the  lips  of  the  fore- 
man in  open  court.  When  the  jury  have  been  permitted  to  separate 
after  agreeing  upon  and  sealing  up  a  verdict,  there  is  this  difference 
between  civil  and  criminal  cases:  In  a  civil  action,  if  the  written  ver- 
dict does  not  pass  upon  the  whole  case,  or  the  jury  refuse  to  affirm  it, 
the  court  may  send  them  out  again,  and  a  fuller  or  different  verdict 
afterwards  returned  will  be  good.  But,  in  a  criminal  case,  the  oral 
verdict  pronounced  by  the  foreman  in  open  court  cannot  be  received, 
unless  it  is  shown  to  accord  substantially  with  the  form  sealed  up  by 
the  jury  before  their  separation.  '  Lawrence  v.  Stearns,  11  Pick.  501 ; 
Pritchard  v.  Hennessey,  1  Gray,  294 ;    Commonwealth  v.  Townsend, 

5  Allen,  216;  Commonwealth  v.  Durfee,  100  Mass.  146;  Common- 
wealth V.  Carrington,  116  Mass.  37;  Dornick  v.  Reichenback,  10  Serg. 

6  R.  (Pa.)  84;  Lord  v.  State,  16  N.  H.  325,  41  Am.  Dec.  729.    *    *    * 
In  the  case  at  bar,  after  the  jury,  upon  their  return  into  court,  had 

been  asked  whether  they  had  agreed  upon  their  verdict,  and  the  fore- 
man had  answered  that  they  had,  the  form  of  verdict  which  had  been 
signed  and  sealed  up  before  the  jury  separated  was  silently  delivered 
by  the  foreman  to  the  clerk,  and  was  opened  and  read  by  the  clerk  to 
the  jury.  The  clerk  thereupon  told  the  jury  (in  the  words  accustomed 
to  be  used  after  a  verdict  has  been  pronounced  by  the  foreman  and 
minuted  by  the  clerk)  to  hearken  to  their  verdict  as  the  court  had  re- 
corded it.  And  the  bill  of  exceptions  states  that  "the  above  is  all  that 
was  said." 

In  Commonwealth  v.  Carrington,  already  cited,  upon  which  the  At- 
torney General  principally  relies,  the  bill  of  exceptions  stated  that, 
before  the  verdict  was  recorded,  the  clerk  asked  the  jury  if  their  ver- 
dict was  that  the  defendant  was  guilty,  to  which  they  assented ;  and, 
although  the  precise  form  in  which  such  inquiry  and  response  were 
expressed  was  not  set  forth  in  the  bill  of  exceptions,  it  was  assumed, 
both  by  the  counsel  and  by  the  court,  that  an  oral  verdict  had  been 
returned  in  due  form,  if  any  such  verdict  could  be  received  after  the 
jury  had  separated  and  had  brought  in  a  sealed  verdict. 

But,  in  the  present  case,  it  distinctly  appears  that  when  the  clerk 
told  the  jury  to  hearken  to  their  verdict  as  recorded,  no  legal  or  ef- 
fectual verdict  had  been  returned  by  the  jury,  and  they  had  not  been 
asked,  nor  in  any  form  of  words  orally  and  publicly  stated,  what  their 


Ch.  12)  TRIAL.  333 

verdict  was,  and  that,  after  they  had  been  told  that  a  verdict  of  guilty- 
had  been  recorded,  they  simply  said  nothing.  A  verdict  which  has 
never  been  spoken  by  the  jury  cannot  be  imphed  from  the  mere  omis- 
sion of  the  jury  to  contradict  the  statements  of  the  clerk,  or  from 
the  silence  of  the  prisoner  and  his  counsel. 

The  verdict  received  and  recorded  by  the  court  not  being  a  legal 
verdict,  it  was  the  right  of  the  defendant,  upon  his  motion  filed  on  the 
same  day,  to  have  it  set  aside.  The  order  of  the  superior  court,  over- 
ruling this  motion  and  denying  him  this  right,  was  a  decision  upon  a 
question  of  law  which  could  not  have  been  raised  before  verdict,  and 
was  therefore  a  proper  subject  of  a  bill  of  exceptions.  Gen.  St.  c.  115, 
§  7.     *     *     - 

Exceptions  sustained. 


PEOPLE  V.  DAVIDSON. 

(Supreme  C!ourt  of  California,  1855.    5  Cal.  133.) 

Bryan,  J./  delivered  the  opinion  of  the  court.  HEYDENJ'ELD'r,  J., 
concurred. 

This  cause  was  tried  in  the  court  of  sessions,  for  Placer  county,  up- 
on an  indictment  charging  the  defendants  with  an  assault  with  in- 
tent to  commit  murder.    *    *    * 

The  verdict  of  the  jury  which  finds  the  defendant  guilty  of  an  "as- 
sault with  a  deadly  weapon,  with  intent  to  commit  great  bodily  in- 
jury," is  regular,  and  we  deem  that  it  finds  the  defendant  guilty  of 
a  public  offense.  Section  424  of  the  act  regulating  proceedings  in 
criminal  cases  provides  that  in  all  cases  a  person  may  be  found  guilty 
of  an  offense,  the  commission  of  which  is  necessarily  included  in  that 
with  which  he  may  be  charged  in  the  indictment. 

To  find  the  defendant  guilty  of  an  "assault  with  intent  to  commit 
great  bodily  injury"  is  necessarily  included  in  the  charge  of  an  assault 
with  intent  to  commit  murder.    We  find  no  error  in  the  record  sent  up. 

The  judgment  below  is  therefore  affirmed,  with  costs. 


HUNTER  V.  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1875.    79  Pa.  503,  21  Am.  Rep.  83.) 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court,  November 
15,  1875.1 

The  plaintiff  in  error  was  indicted  for  a  felonious  assault.  The 
jury  convicted  him  of  assault.  A  motion  in  arrest  of  judginent  was 
made,  which  was  overruled  by  the  court  below,  and  judgment  entered 
on  the  verdict.    This  is  assigned  here  for  error. 

1  Part  of  this  case  is  omitted. 


334  TRIAL.  (Cb.  12 

The  record  presents  the  single  question  whether,  upon  an  indict- 
ment charging-  a  felony,  the  jury  may  acquit  of  the  felony,  and  con- 
vict of  the  constituent  misdemeanor.  We  are  in  no  doubt  as  to  the 
rule  at  common  law.  It  was  long  held  in  England  that  upon  an  in- 
dictment for  a  felony  there  could  be  no  conviction  for  the  minor  offense 
of  misdemeanor.  Rex  v.  Cross,  1  Ld.  Raym.  711,  3  Salk.  193 ;  2 
Hawk.  c.  47,  §  6 ;  1  Chit.  C.  h.  251,  639.  The  reason  of  the  rule  was 
that  persons  indicted  for  misdemeanors  were  entitled  to  certain  ad- 
vantages at  the  trial,  such  as  the  right  to  make  a  full  defense  by  coun- 
sel, to  have  a  copy  of  the  indictment,  and  a  special  jury,  privileges  not 
accorded  to  those  indicted  for  a  felony.  It  is  apprehended  these  rea- 
sons no  longer  exist  in  England — at  least  not  to  the  extent  they  did 
formerly,  for  by  St.  1  Vict.  c.  85,  §  11  (Lord  Denman's  act),  the  rule 
itself  has  been  abolished,  and  now  upon  a  bill  charging  a  felony  a 
conviction  may  there  be  had  for  a  constituent  misdemeanor.  It  is  clear 
that  the  reason  of  the  rule  has  no  application  in  this  state.  On  the 
contrary,  the  advantages,  if  any,  upon  the  trial,  are  all  in  favor  of  those 
charged  with  a  felony.  By  the  merciful  provisions  of  our  criminal 
law,  the  higher  and  more  atrocious  the  crime,  the  more  numerous  are 
the  safeguards  thrown  around  the  accused,  and  the  more  jealously 
does  the  law  guard  every  legal  right  to  which  he  is  entitled. 

The  rule  in  other  states  of  this  country  is  by  no  means  uniform.  It 
is  said  by  Mr.  Wharton,  in  his  work  on  Criminal  Law  (section  400), 
that  the  old  common-law  rule  is  still  followed  in  Massachusetts,  Indi- 
ana, and  Maryland ;  while  in  New  York,  Vermont,  New  Jersey,  Ohio, 
North  CaroHna,  South  Carolina,  and  Arkansas  it  has  been  held  that, 
the  reason  of  the  English  rule  having  ceased,  the  rule  itself  ceases,  in 
obedience  to  the  maxim  "Cessante  ratione  legis  cessat  ipsa  lex."  A 
number  of  authorities  are  introduced  by  Mr.  Wharton,  which  it  is  un- 
necessary to  refer  to  here.  The  learned  author  places  Pennsylvania 
as  among  the  states  in  which  the  old  common-law  rule  still  prevails, 
and  cites  Commonwealth  v.  Gable,  7  Serg.  &  R.  433,  in  support  of 
his  text.  The  case  referred  to  is  authority  only  for  what  it  decides. 
No  such  question  was  before  the  court.  The  contention  there  was 
whether,  upon  an  indictment  for  murder,  a  conviction  for  man- 
slaughter, without  stating  it  was  for  voluntary  manslaughter,  could 
be  sustained.  The  court  held  that  the  verdict  was  sufficiently  certain ; 
that  it  was  to  be  presumed  the  jury  meant  voluntary  manslaughter. 
It  is  true,  Tilghman,  C.  J.,  who  delivered  the  opinion  of  the  court, 
recognized  the  common-law  rule  referred  to;  but  it  was  assumed,  not 
argued.  Indeed,  it  could  not  well  have  been  otherwise,  as  the  point 
was  not  made.  Black,  C.  J.,  also  appears  to  have  recognized  the 
rule  in  Dinkey  v.  Commonwealth,  17  Pa.  127,  55  Am.  Dec.  542,  when 
he  said  that,  "on  an  indictment  for  a  felony,  there  cannot  be  a  con- 
viction for  a  minor  offense  included  within  it,  if  such  minor  offense 
be  a  misdemeanor."  But  this  point  was  not  before  the  court  in  Dinkey 
V.  Commonwealth.     All  that  case  ruled  was  that  an  indictment  for 


Ch.  12)  TRIAL.  335 

seduction  under  the  statute  includes  the  charge  of  fornication,  and 
that  a  party  indicted  for  seduction,  and  acquitted,  may  plead  such  an 
acquittal  in  bar  of  the  subsequent  indictment  for  fornication  and  bas- 
tardy on  the  same  act,  and  the  record  will  be  a  complete  defense. 

It  will  thus  be  seen  that  Dinkey  v.  Commonwealth,  as  well  as  Com- 
monwealth V.  Gable,  are  not  authority  to  the  extent  claimed  for  them, 
and  can  hardly  be  said  to  support  the  rule.  On  the  other  hand,  we 
are  not  without  authority  to  support  a  conviction  of  a  misdemeanor  up- 
on an  indictment  charging-  a  felony.  In  Harman  v.  Commonwealth, 
12  Serg.  &  R.  69,  in  which  it  was  held  that  a  count  charging  assault 
with  intent  to  ravish  might  be  joined  with  a  count  for  rape,  Tilghman, 
C.  ].,  shows  that  as  far  back  as  1772,  upon  an  indictment  charging 
rape,  the  defendant  had  been  convicted  of  an  assault  with  intent  to 
ravish.  In  Shouse  v.  Commonwealth,  5  Pa.  83,  the  principle  is  laid 
down  by  Burnside,  J. :  "When  a  count  in  an  indictment  contains  a 
divisible  averment,  it  is  the  province  of  the  jury  to  discriminate  and 
find  the  divisible  offense ;  and  this  distinction  runs  through  the  whole 
criminal  law.  It  is  enough  to  prove  so  much  of  the  indictment  as 
shows  that  the  defendants,  or  any  one  of  them,  has  committed  a  sub- 
stantial crime  therein  specified."  Justice  Burnside  then  proceeds  to 
cite  Rex  v.  Dawson,  3  Starkie,  G3,  where  an  indictment  charged  the 
defendant  with  an  assault  with  intent  to  abuse  and  carnally  know  a 
female  child,  and  it  was  held  that  he  might  be  convicted  of  an  assault 
to  abuse  her  simply.  Stewart  v.  State,  5  Ohio,  242,  where  it  was  held 
that,  on  an  indictment  for  an  assault  with  an  intent  to  murder,  there 
may  be  a  conviction  of  an  assault  simply;  and  adds:  "This  is  the  law 
and  practice  of  Pennsylvania."  The  general  rule  is  well  settled  that, 
upon  an  indictment  charging  a  particular  crime,  the  defendant  may  be 
convicted  of  a  lesser  offense  included  within  it.  Thus  upon  an  indict- 
ment for  murder  the  prisoner  may  be  convicted  of  manslaughter;  a 
person  charged  with  burglary  may  be  convicted  of  larceny,  if  the 
proof  fail  of  breaking  and  entering ;  a  person  charged  with  seduction 
may  be  convicted  of  fornication  (Dinkey  v.  Commonwealth,  17  Pa. 
127,  55  Am.  Dec.  542) ;  when  persons  are  indicted  for  riotous  assault 
and  battery,  they  may  be  convicted  of  assault  and  battery  only  (Shouse 
V.  Commonwealth,  5  Barr,  83)  ;  when  the  charge  is  assault  and  bat- 
tery, a  conviction  may  be  had  for  assault.  Instances  of  this  kind 
might  be  multiplied  indefinitely  if  necessary.     *     *     * 

The  judgment  of  the  court  of  quarter  sessions  is  affirmed.^ 

3  At  the  early  common  law  it  a])pears  that  not  only  conld  the  accused  he 
convicted  for  a  misdemeanor  on  an  indictment  setting  ont  the  spedal  circum- 
.stances  of  the  ease,  charging  the  acts  alleged  to  have  been  done  feloniously, 
if  the  acts  amounted  to  a  misdemeanor  only.  Holmes'  Case.  Cro.  Car.  37G 
(1634) ;  Joyner's  Case,  Kel.  29  (1664),  but  even  on  a  general  indictment  for 
felony,  in  which  the  misdemeanor  was  not  charged,  if  a  si)ecial  verdict  was 
found.  Leeser's  Case,  Cro.  .Tac.  497  (1618).  But  in  Westbeer's  Case,  2  Str. 
1133  (1740),  one  was  indicted  for  feloniously  stealing  a  parchment,  and  the 
jury  found  a  special  verdict  by  which  it  appeared  that  the  parchment  ecu- 


336  TRIAL.  (Ch.  12 

WILLIAMS  V.  STATE. 

(Supreme  Court  of  Nebraska,  1877.    6  Neb.  334) 

Lake,  C.  J.4  *  *  *  Another  objection  is  that  no  valid  verdict 
was  returned — in  other  words,  that  it  was  a  mere  nuUity,  and  not  suf- 
ficient to  support  a  judgment.    It  was  in  these  words: 

"We,  the  jury  in  this  case,  being  duly  impaneled  and  sworn,  do  find 
and  say  that is  guilty  of  manslaughter. 

"[Signed]  H.  H.  Achey,  Foreman." 

It  was  conceded  by  the  Attorney  General  that  the  omission  to  desig- 
nate the  prisoner  in  some  manner  as  the  person  found  to  be  guilty 
was  a  fatal  defect.  That  it  is  so  there  can  be  no  doubt  whatever.  We 
may  have  an  abiding  conviction  that  the  prisoner  was  the  one  upon 
whom  they  intended  to  fix  the  guilt — that  it  could  have  been  no  one 
else — but  this  is  not  enough.  The  verdict  of  the  jury  is  a  step  in  the 
conviction  of  an  individual  for  a  felony  that  cannot  be  left  to  con- 
jecture; but  it  must  speak  for  itself  as  to  every  material  fact,  sensibly, 
without  ambiguity,  and  with  certainty,  or  it  should  be  set  aside.  We 
regard  this  as  a  void  verdict,  and  of  no  legal  force  or  effect  whatever. 
This,  too,  is  an  error  that  calls  for  a  reversal  of  the  judgment.    *    *    * 

Reversed  and  remanded.^ 


STATE  V.  GREEN. 

{Supreme  Court  of  North  Carolina,  1896.    119  N.  C.  899,  26  S.  B.  112.) 

FuRCHES,  J.^  This  is  an  indictment  for  a  secret  assault  with  a  dead- 
ly weapon  (a  gun)  with  intent  to  kill,  under  chapter  32,  Laws  1887. 
Under  instructions  from  the  court  the  jury  found  the  defendant  "guilty 
as  accessory,"  and  upon  this  verdict  the  court  pronounced  judgment, 
and  the  defendant  appealed.     *    *    * 

We  have  no  means  of  knowing  from  this  indictment  and  verdict 
whether  tlie  defendant  was  convicted  as  accessory  before  or  after  the 
fact.  But  neither  of  these  offenses  is  the  same  offense  as  that  charged 
in  the  bill  of  indictment,  nor  is  either  one  of  them  a  less  degree  of 
the  same  offense  as  that  charged  in  the  bill.    There  were  other  mat- 

cerned  the  realty.  The  court  held  that,  the  prisoner  being  not  guilty  of  the 
felony,  he  could  not  be  convicted  of  the  misdemeanor,  and  said,  referring  to 
the  cases  cited  ahove :  "In  the  cases  cited  pro  rege,  the  judges  appear  to  be 
transported  with  zeal  too  far." 

4  Part  of  this  case  is  omitted. 

5  Accord:  Where  the  verdict  does  not  show  on  which  of  several  counts  the 
defendant  is  found  guilty.  Day  v.  People,  7G  111.  380  (1875).  Or  to  which  of 
several  defendants  the  verdict  applied.  People  v.  Sepulveda,  59  Oal.  342 
(1881) ;  Favor  v.  State,  54  Ga.  249  (1875).  See,  also.  State  v.  Coon,  18  Minn. 
518,  Gil.  464  (1872) ;  Wells  v.  State.  116  Ga.  87,  42  S.  E.  390  (1902) ;  State  v. 
Pierce,  136  Mo.  34,  37  S.  W.  815  (1896). 

6  Part  of  this  case  is  omitted. 


Ch.  12)  TRIAL.  337 

ters  discussed  in  the  argument  before  us  that  we  do  not  consider  and 
pass  upon,  as  they  are  not  Hkely  to  arise  again  upon   a  new  trial. 
There  is  error,  and  a  new  trial  is  awarded  the  defendant. 
New  trial. 


REX  V.  HEAPS. 
(Court  of  King's  Bench,  1699.    2  Salk.  593.) 

Indictment,  That  the  Defendants  riotose  &  routose  &  illicite  assem- 
blaverunt,  &  sic  assemblati  existentes  riotose  &  routose  insultum  fece- 
runt  in  quendam  F.  Russel,  &c.  Upon  Not  guilty,  the  Jury  found 
two  Defendants  guilty,  and  acquitted  the  rest:  And  it  was  moved  in 
Arrest  of  Judgment,  that  two  cannot  make  a  Riot,  and  therefore  can- 
not be  guilty  of  a  Riot,  and  that  all  are  acquitted  by  this  Verdict :  On 
the  other  Side  it  was  said.  That  the  Assault  and  Battery  is  charged 
in  the  Indictment  as  well  as  the  Riot;  and  two  Defendants  may,  as 
they  are  found,  be  guilty  of  that. 

Sed  per  Hoi,T,  C.  J.  A  Riot  is  a  specifick  OfTence,  and  the  Bat- 
tery is  not  laid  as  a  Charge  of  itself,  but  as  a  Part  of  the  Riot ;  for 
the  Riotose  &  Routose  runs  thro'  all,  and  is  ascribed  to  the  Battery 
as  well  as  the  Assembly.  The  Consequence  is,  That  these  Defend- 
ants being  discharged  of  the  Riot,  are  discharged  likewise  of  the  Bat- 
tery ;   and  no  Judgment  can  be  given ;   and  Judgment  was  arrested.^ 


KLEIN  V.  PEOPLE. 

(Court  of  Appeals  of  New  York,  1864.    31  N.  T.  229.) 

Ingraham,  J.^  The  prisoner  was  indicted  with  Barbara  Klein  for 
grand  larceny.  When  the  case  came  on  for  trial,  Klein  pleaded  guilty 
of  an  attempt  to  commit  grand  larceny.  Myer  was  then  tried  and 
found  guilty.  The  prisoner  now  moves  in  arrest  of  judgment,  on  the 
ground  that  both  defendants  must  be  convicted  of  the  same  offense, 
and  not  of  different  grades  of  offense.  There  can  be  no  doubt  that  one 
defendant  might  have  been  acquitted  and  the  other  convicted,  and 
such  conviction  have  been  good.  And  it  has  been  held  that  where  two 
are  charged  with  a  joint  offense,  either  may  be  found  guilty.  R.  v. 
Hempstead,  R.  &  R.  344.  But  where  persons  are  jointly  indicted  for 
a  joint  offense,  they  cannot  be  convicted  of  separate  offenses;  and  if 
the  act  is  indivisible,  such  as  conspiracy  or  riots,  then  one  cannot  be 
convicted  without  the  other.     Stephens  v.  State,  14  Ohio,  388 ;    State 

7  See.  also,  Thetge  v.  State,  83  Ind.  12G  (1882) ;  Wright  v.  People,  33  Mich. 
300  (1876). 

8  Part  of  this  case  is  omitted. 

Mik.Cb.Pb.— -22 


338  TRIAL.  (Ch.  12 

V.  McO'Blenis,  21  Mo.  272;  Pennsylvania  v.  Huston,  Add.  (Pa.)  331. 
But,  except  in  indictments  for  offenses  necessarily  joint,  joint  defend- 
ants may  be  convicted  of  different  grades.  Sliorese  v.  Caw,  5  Barr. 
83 ;  R.  V.  Butterworth,  R.  &  R.,  520.  And  they  may  be  convicted  of 
different  degrees  of  criminality  in  the  same  offense,  where  the  de- 
fendants may  act  different  parts  in  the  same  transaction.  Thus,  where 
two  defendants  are  charged  with  murder  in  the  same  indictment,  the 
jury  may  find  one  guilty  of  murder  and  another  of  manslaughter. 
United  States  v.  Harding,  1  Wall.  Jr.  127,  Fed.  Cas.  No.  15,301 ;  Mask 
V.  State,  32  Miss.  406.  So,  in  a  charge  of  burglary,  one  may  be  con- 
victed of  burglary  and  another  of  grand  larceny,  where  the  first  one 
broke  open  the  house  and  the  other  afterwards  entered,  and  the  two 
committed  the  larceny.    Russ.  &  Ry.  C.  C.  520. 

In  the  present  case,  the  prisoner  Klein  pleaded  guilty  of  an  at- 
tempt to  commit  grand  larceny.  This  she  might  have  done  without 
necessarily  being  proven  guilty  of  the  further  offense.  After  the  plea 
was  put  in,  she  was  considered  as  if  she  had  been  tried  separately  and 
acquitted,  or  convicted  of  a  lesser  grade.  It  did  not  prevent  the  trial 
of  the  prisoner  Myer,  nor  his  conviction  of  the  whole  charge,  any 
more  than  if  both  had  been  indicted  for  murder,  and  one  on  a  sep- 
arate trial  had  been  convicted  of  manslaughter ;  or,  in  an  indictment 
for  burglary,  if  one  had  been  convicted  of  larceny,  the  other  might 
afterwards  be  convicted  of  burglary. 

I  understand  the  rule  to  be,  if  both  are  convicted  of  offenses  in  the 
same  continuing  transaction,  they  may  be  convicted  of  different  de- 
grees, if  the  prisoners  take  different  parts  in  the  commission  of  the 
same  offense. 

The  prisoner  was  properly  convicted,  and  the  judgment  should  be 
affirmed.* 


REX  V.  TURNER  et  al. 
(Old  Bailey,  1663.     Sid.  171.) 

Turner  and  others  were  indicted  for  that  they  feloniously  and  bur- 
glariously broke  the  mansion  house  of  Francis  Tryan  in  a  certain 
ward  in  London,  and  there  stole  money  and  jewels  to  the  value  of 
iojOOO.  And  after  not  guilty  pleaded,  and  much  evidence,  the  jury 
found  Turner  guilty  of  burglary  (for  which  he  was  afterward  hung 
in  Cheapside)  and  one  of  the  sons  guilty  of  felony  (et  the  others  they 
acquitted)  and  the  question  was  if  this  was  a  good  verdict  as  to  the 
felony  against  the  son.  It  seemed  to  the  two  Chief  Justices  and  others 
that  it  was  not;  for,  although  the  jury  might  have  found  all  guilty 
of  felony,  they  could  not  find  one  guilty  of  burglary  and  the  others 
of  felony  upon  the  same  indictment  and  the  same  evidence. 

»  Compare  Rex  v.  Hempstead,  Russ.  &  Ry.  344  (1818). 


Cll.  12)  TRIAL.  339 

COMMONWEALTH  v.  CAREY. 

(Supreme  Judicial  Court  of  Massacliusetts,  Essex,  18G9.     103  Mass.  214.) 

Indictment  on  St.  1868,  c.  141,  with  three  counts;  the  first  charging 
the  defendant  with  unlawfully  exposing  intoxicating  liquors  for  sale, 
and  the  second  and  third  respectively  with  making  different  unlawful 
sales  of  intoxicating  liquors.     *     *     * 

Morton,  J.^°  It  is  well  settled  that  several  offenses  may  be  charged 
in  separate  counts  of  the  same  indictment,  if  they  are  of  the  same  gen- 
eral character  and  subject  to  the  same  kind  of  punishment;  and  wheth- 
er they  shall  be  tried  separately  or  together  is  a  matter  within  the 
discretion  of  the  presiding  judge.  But,  if  they  are  tried  together,  the 
cardinal  principles  of  the  criminal  law  apply  in  the  same  manner  as  if 
each  offense  was  charged  in  a  separate  indictment  and  tried  separately. 
Each  offense  charged  must  be  proved  beyond  reasonable  doubt,  by 
evidence  legally  applicable  thereto.  It  necessarily  follows  that  the  jury 
must  pass  upon  each  count  separately,  and  apply  to  it  the  evidence 
bearing  upon  the  defendant's  guilt  of  the  offense  therein  charged.  And 
if  they  fail  to  do  so,  their  verdict  cannot  be  sustained. 

In  the  case  at  bar,  the  jury  returned  a  general  verdict  of  guilty ; 
but,  before  it  v/as  afifirmed  and  recorded,  their  foreman  stated,  in  an- 
swer to  a  question  by  the  court,  that  they  did  not  pass  upon  the  counts 
separately.  It  was  thus  made  to  appear  in  a  proper  manner  that  the 
jury,  probably  through  misapprehension  of  the  instructions  given, 
had  failed  to  perform  the  duty  required  of  them,  and  that  their  ver- 
dict was  unauthorized  by  law.  It  was  undoubtedly  a  matter  within 
the  discretion  of  the  presiding  judge  whether  inquiry  should  be  made 
of  the  jury  as  to  the  grounds  or  counts  upon  which  they  found  their 
verdict ;  and  if  no  inquiry  had  been  made,  the  general  verdict  of  guilty 
would  apply  to  each  count,  upon  the  presumption  that  the  jury  had 
correctly  understood  and  applied  the  instructions  given  them.  But. 
the  inquiry  having  been  made,  and  having  elicited  the  fact  that  the 
verdict  had  not  been  found  in  a  manner  authorized  by  law,  it  was  er- 
roneous in  the  court  to  order  the  verdict  thus  found  to  be  affirmed  and 
recorded. 

Exceptions  sustained. 

10  Part  of  tliis  case  is  omitted. 


340  TRIAL.  (Cb.  12 


SELVESTER  v.  UNITED  STATES. 

(Supreme  Court  of  the  United  States,  1897.    170  U.  S.  262,  18  Sup.  Ct.  5S0,  42 

L.  Ed.  1029.) 

Mr.  Justice  Gray,  i\Ir.  Justice  Brown,  and  Mr.  Justice  Shir.\s  con- 
curred in  part,  ^^  as  follows: 

We  concur  in  the  judgment  of  affirmance,  and  upon  this  short 
ground :  The  indictment  contained  four  counts.  The  defendant  plead- 
ed not  guilty  to  the  whole  indictment,  and  thereby  joined  issue  on  each 
and  all  of  the  counts,  and  the  jury  might  find  the  defendant  guilty 
upon  all  or  any  of  them.  The  jury  did  return  a  verdict  of  guilty  upon 
each  of  the  first  three  counts,  and  disagreed  as  to  the  fourth  count. 
The  jury  thus  answered  the  whole  of  the  issue  presented  by  the  plea 
to  each  of  the  first  three  counts,  and  failed  to  answer  the  issue  pre- 
sented by  the  plea  to  the  fourth  count.  Their  failure  to  return  a 
verdict  on  the  fourth  count  did  not  affect  the  validity  of  the  verdict 
returned  on  the  other  three  counts,  or  the  liability  of  the  defendant 
to  be  sentenced  on  that  verdict.  The  defendant  was  sentenced  upon 
those  counts  only  upon  which  he  had  been  convicted  by  the  jury. 
There  is  no  error,  therefore,  in  the  judgment  rendered  upon  the  ver- 
dict. 

But  in  so  much  of  the  opinion  of  the  court  as  suggests  that  the  plain- 
tiff in  error  may  be  hereafter  tried,  convicted,  and  sentenced  anew  upon 
the  fourth  count,  we  are  unable  to  concur.  No  attempt  has  been  made 
to  try  him  anew,  and  the  question  whether  he  may  be  so  tried  is  not 
presented  by  this  record.  Upon  principle,  on  one  indictment,  and 
against  one  defendant,  there  can  be  but  one  judgment  and  sentence, 
and  that  at  one  time,  and  for  the  offense  or  offenses  of  which  he  has 
been  convicted ;  and  a  sentence,  upon  the  counts  on  which  he  has  been 
convicted  by  the  jury  definitely  and  conclusively  disposes  of  the  whole 
indictment,  operates  as  an  acquittal  upon,  or  a  discontinuance  of,  any 
count  on  which  the  jury  have  failed  to  agree,  and  makes  any  further 
proceedings  against  him  on  that  count  impossible.  No  case  has  been 
found  in  which,  after  a  conviction  and  sentence,  remaining  unreversed, 
on  some  of  the  counts  in  an  indictment,  a  second  sentence,  upon  a  sub- 
sequent trial  and  conviction  an  another  count  in  the  same  indictment, 
has  been  affirmed  by  a  court  of  error. 

In  Ballew  v.  U.  S.,  160  U.  S.  187,  203,  16  Sup.  Ct.  263,  40  L.  Ed. 
388,  and  in  Putnam  v.  U.  S.,  162  U.  S.  687,  715,  16  Sup.  Ct.  923,  40 
L.  Ed.  1118,  in  each  of  which  a  judgment  upon  conviction  on  an  indict- 
ment containing  two  counts  was  affirmed  as  to  one  count,  and  reversed 
as  to  the  other  count,  the  order  of  reversal  did  not  direct  a  new  trial 
on  the  latter  count,  but  was  guardedly  framed  in  general  terms  "for 

11  The  statement  of  facts  and  the  opinion  of  the  court,  delivered  by  Mr. 
Justice  White,  are  omitted. 


Ch.  12)  TRIAL.  341 

such  proceedings  with  reference  to  that  count  as  may  be  in  conformity 
to  law" ;  and  under  such  an  order  it  would  be  open  to  the  defend- 
ant, if  set  at  the  bar  to  be  tried  again  on  that  count,  to  plead  the  previ- 
ous verdict  and  sentence  in  bar  of  the  prosecution.^^ 


STATE  V.  ROWE. 

(Supreme  Court  of  Missouri,  1898.     142  Mo.  439,  44  S.  W.  2G6.) 

Burgess,  J.  At  the  July  term,  1897,  of  the  Greene  county  criminal 
court,  defendant  was  convicted  under  an  indictment  theretofore  pre- 
ferred against  him  by  the  grand  jury  of  said  county,  charging  him 
with  burglary  in  the  second  degree  and  larceny,  and  his  punishment 
fixed  at  five  years'  imprisonment  in  the  penitentiary.  He  then  filed 
motions  for  a  new  trial,  and  in  arrest,  which  being  overruled,  he  saved 
his  exceptions,  and  brings  the  case  to  this  court  by  appeal.  Defend- 
ant is  not  represented  in  this  court.  No  bill  of  exceptions  was  filed, 
so  that  there  is  nothing  for  review  other  than  the  record  proper.  The 
indictment  is  free  from  objection,  and  in  form  often  approved  by  this 
court.  The  verdict  of  the  jury  was  a  general  one,  simply  stating:  "We. 
the  jury,  find  the  defendant  guilty  as  charged  in  the  indictment,  and 
assess  his  punishment  at  imprisonment  in  the  state  penitentiary  for 
the  period  of  five  years."  The  verdict  and  judgment  are  part  of  the 
record  in  the  cause.  In  Bateson  v.  Clark,  37  Mo.  31,  it  was  said: 
"The  record  proper  by  law  is  the  petition,  summons,  and  all  subse- 
quent pleadings,  including  the  verdict  and  judgment,  and  that  the  law 
has  made  it  our  duty  to  examine  and  revise ;  and,  if  any  error  is  ap- 
parent on  the  face  of  these  pleadings  which  constitute  the  record,  we 
will  reverse  the  cause,  whether  any  exceptions  were  taken  or  not." 
Railway  Co.  v.  CarHsle,  94  Mo.  166,  7  S.  W.  102;  Railwav  Co.  v. 
Lewright,  113  Mo.  660,  21  S.  W.  210 ;  Lilly  v.  Menke,  126  Mo.  190, 
28  S.  W.  643,  994. 

The  defendant  was  charged  with  two  separate  and  distinct  offenses, 
to  wit,  burglary  in  the  second  degree  (section  3524,  Rev.  St.  1889), 
and  grand  larceny  (section  3535,  Rev.  St.  1889).  For  burglary  in  the 
second  degree  the  punishment  is  fixed  by  statute  at  not  less  than  three 
years'  imprisonment  in  the  penitentiary.  Section  3528,  Rev.  St.  1889. 
By  section  3529,  Rev.  St.  1889,  it  is  provided  that  "if  any  person,  in 
committing  burglary,  shall  also  commit  a  larceny,  he  may  be  prose- 
cuted for  both  offenses  in  the  same  count,  or  in  separate  counts  of 

12  Wliere  the  oonnts  are  for  the  same  offense,  see  Commonwealth  v.  Fitch- 
bur?  R.  R..  120  Mass.  372  (1876). 

"It  was  lield  at  an  early  day.  in  this  court,  that  one  sood  count  was  suf- 
ficient to  uphold  a  general  verdict  and  judgment  upon  all  the  counts,  though 
some  of  them  might  be  bad."  Nelson,  J.,  in  Clifton  v.  U.  S.,  4  How.  230,  11 
L.  Ed.  9.57  (1846). 

Contra:  O'Connell  v.  Reg..  11  CI.  &  F.  155  (1844).  And  see  Avirett  v.  State, 
76  Md.  510,  25  Atl.  676,  987  (1893). 


342  TRIAL,  (CL.  13 

the  same  indictment,  and,  on  conviction  of  such  burglary  and  larceny, 
shall  be  punished  by  imprisonment  in  the  penitentiary,  in  addition  to 
the  punishment  hereinbefore  prescribed  for  the  burglary,  not  less  than 
two  nor  exceeding  five  years."  It  will  be  observed  that  the  punish- 
ment prescribed  by  statute  for  the  two  dififerent  offenses  is  entirely 
different.  While  for  the  burglary  it  cannot  be  less  than  three  years' 
imprisonment  in  the  penitentiary,  there  is  no  limit  for  its  duration.  It 
may  be  for  life;  and  for  the  larceny  it  cannot  be  less  than  two  years, 
nor  more  than  five  years ;  so  that  the  verdict  must,  of  necessity,  speci- 
fy the  offense  of  which  the  defendant  is  found  guilty,  and  the  punish- 
ment imposed  for  such  oft'ense,  otherwise  it  will  be  invalid.  There 
being  two  separate  and  distinct  offenses  charged,  upon  either  one  of 
which,  or  both,  the  defendant  might  have  been  convicted  if  the  evi- 
dence was  sufficient,  and  acquitted  of  one  or  altogether  if  insufficient, 
it  is  impossible  to  determine  from  the  verdict  whether  the  jury  in- 
tended to  find  him  guilty  of  both  charges,  or  to  find  him  guilty  of  one, 
and  acquit  him  of  the  other,  and,  if  the  latter,  of  which  one  of  the 
charges  they  intended  to  find  him  guilty.  Such  a  verdict  cannot  stand. 
It  is  too  indefinite  and  uncertain. 

In  State  v.  Pierce,  136  Mo.  34,  37  S.  W.  815,  there  is  quoted  with 
approval  the  following,  from  3  Grab.  &  W.  New  Trial,  p.  1078 :  "The 
verdict  must  be  certain,  positive,  and  free  from  all  ambiguity.  It  must 
convey  on  its  face  a  definite  and  precise  meaning,  and  must  show  just 
what  the  jury  intended.  An  obscurity  which  renders  it  at  all  doubtful 
will  be  fatal  to  it."  And  from  1  Bish.  Cr.  Proc.  (3d  Ed.)  §  1005,  the 
following:  "If  the  verdict  does  not  find  the  issue  presented  by  the 
record,  but  some  other,  or  is  silent  in  some  element  of  the  offense, 
no  valid  judgment  can  be  recorded  upon  it,  and  it  should  be  set  aside; 
or  if  the  meaning  of  it  is  uncertain,  as,  for  example,  if  it  does  not 
show  which  of  two  defendants  is  meant  to  be  convicted,  or  on  which 
of  two  counts  the  conviction  is,  the  consequence  is  the  same."  State 
V.  Harmon,  lOG  Mo.  635,  IS  S.  W.  128. 

A  verdict  which  is  not  so  responsive  to  the  charge  alleged  in  the 
indictment  as  to  afford  the  defendant  protection  against  another  pros- 
ecution for  the  same  offense  is  manifestly  erroneous,  and  the  verdict 
in  this  case  is  of  that  character.  It  makes  no  difference  that  both  of- 
fenses were  charged  in  the  same  count.  It  is  true  that  a  different  con- 
clusion was  reached  in  State  v.  Butterfield,  75  Mo.  297,  in  which  it 
was  held  that  a  general  verdict  of  guilty  under  an  indictment  charging 
both  burglary  and  larceny  in  the  same  count  of  the  indictment  was 
sufficient ;  but  that  case  was  not  well  considered,  is  clearly  not  in  line 
wath  the  authorities,  and  especially  the  more  recent  decisions  of  this 
court  in  State  v.  Harmon,  supra,  and  State  v.  Pierce,  supra,  and  should 
be  overruled. 

For  these  reasons,  we  reverse  the  judgment,  and  remand  the  cause 
for  further  trial,  in  accordance  with  the  views  herein  expressed. 

Gantt,  P.  J.,  and  Sherwood,  J.,  concur. 


Cli.  12)  TuiAL.  343 

CO^BIOXWEALTH  v.  CALL. 

(Siipreme  Judicial  Court  of  Massachusetts,  Suffolk  and  Nantucket,  lSo9.     21 
Pick.  509,  32  Am.  Dec.  284.) 

The  defendant  was  tried  in  the  municipal  court  upon  an  indictment 
for  adultery  committed  within  the  county  of  Sufifolk,  and  the  jury 
returned  the  following  special  verdict,  dated  the  23d  of  March,  1838, 
and  signed  by  the  foreman:  "The  jury  find  the  defendant  guilty  of 
having  had  sexual  intercourse  with  Eliza  Foster,  the  person  named  in 
the  indictment,  she  at  the  same  time  being  an  unmarried  woman,  and 
the  defendant  being  a  married  man  and  having  a  lawful  wife  at  the 
time  then  living."     *    *     * 

Dkwkv,  J.^^  *  *  *  I'j^ig  ijrings  us  to  the  second  objection  taken 
to  the  sufficiency  of  this  verdict,  which  is  that  the  jury  have  not  found 
that  the  offense  charged  upon  the  prisoner  was  committed  within  the 
county  of  Suffolk. 

It  is  a  very  familiar  principle  in  the  administration  of  the  criminal 
law,  that  all  the  circumstances  essential  to  sustaining  the  indictment 
must  be  expressly  found  by  the  jury,  and  the  court  cannot  supply  a 
defect  in  the  finding  of  the  jury  by  intendment  or  implication.  1  Chit- 
ty's  Crim.  Law,  644 ;   Bac.  Abr.  Verdict,  D. 

It  is  equally  clear  that  it  must  always  appear  that  the  jury  have 
found  the  offense  was  committed  within  the  county  in  which  the  in- 
dictment is  found,  or  the  court  cannot  give  judgment  against  the  pris- 
oner.   1  Stark.  Cr.  PI.  354;   The  King  v.  Hazel,  1  Leach,  406. 

In  the  ordinary  case  of  a  general  verdict  of  guilty,  the  jury,  by  the 
very  terms  of  their  verdict,  find  the  prisoner  guilty  of  all  the  material 
allegations  in  the  indictment.  Not  so  in  a  special  verdict,  for  the  very 
object  of  this  departure  from  the  usual  form  is  presumed  to  be  for 
the  purpose  of  declaring  the  prisoner  guilty  of  certain  facts  only,  with 
a  view  of  submitting  the  question  whether  those  facts  authorize  a  gen- 
eral verdict  of  guilty  to  the  judgment  of  the  court.  In  such  a  case, 
if  the  facts  thus  found  do  not  include  all  the  essential  elements  of  the 
offense  charged  upon  the  prisoner,  he  cannot  be  convicted. 

The  finding  of  the  jury  in  the  present  case  shows  the  defendant 
guilty  of  acts  constituting  the  crime  of  adultery,  but  is  entirely  de- 
fective as  to  the  fact  where  the  crime  was  committed.  The  facts  found 
by  the  jury  may  all  be  truly  found,  and  yet  they  may  have  occurred 
in  an  adjacent  county,  or  out  of  the  commonwealth.  We  cannot  ju- 
dicially know  that  the  offense  was  committed  in  the  county  of  Suffolk, 
the  jury  not  having  so  said,  either  directly  or  by  any  reference  to  the 
indictment  in  their  verdict. 

The  court  are  therefore  of  opinion  that  it  was  not  competent  for 
the  municipal  court  to  render  a  judgment  upon  this  verdict,  that  the 

13  Part  of  this  case  is  omitted. 


344  TRIAL.  (Ch.  12 

jury  had  found  the  prisoner  guilty  of  the  offense  as  charged  in  the 
indictment,  and  to  this  extent  the  exception  taken  to  the  ruHng  of  the 
judge  must  be  sustained. 

The  only  remaining  inquiry  is  whether  this  defect  in  the  finding  of 
the  jury  entitles  the  prisoner  to  a  judgment  as  upon  a  verdict  of  not 
guilty. 

The  finding  of  the  jury  here  was  altogether  an  imperfect  and  de- 
fective finding,  and  therefore  not  available  either  to  the  government 
as  a  verdict  of  guilty,  or  to  the  prisoner  as  a  verdict  of  acquittal.  It 
neither  affirms  nor  denies  as  to  the  truth  of  any  allegations  in  the 
indictment,  other  than  as  to  the  facts  specially  stated  in  the  verdict. 
Had  it  found  the  prisoner  not  guilty  ex.cept  as  to  the  matter  thus 
specially  stated,  it  would  have  been  effectual  to  discharge  the  prisoner 
and  would  be  tantamount  to  a  verdict  of  acquittal ;  but  in  its  present 
form  it  cannot  operate  as  such,  and  the  result  will  be  that  the  pris- 
oner must  be  put  again  on  his  trial.  1  Chitty's  Crini.  Law,  QiQ ;  Rex 
v.  Woodfall,  0  Burr.  2661 ;    Rex  v.  Hayes,  3  Ld.  Raym.  1523. 

The  bill  of  exceptions  is  sustained,  and  the  case  remanded  to  the 
municipal  court  for  a  new  trial. 


STATE  V.  FRENCH. 

(Supreme  Court  of  Louisiaua,  1898.     50  La.  Ann.  461,  23  South.  GOG.) 

Brdaux,  J.^*  The  state  in  this  case  appealed  from  an  order  sus- 
taining a  motion  in  arrest  of  judgment.  The  defendant  was  prose- 
cuted upon  an  information  containing  two  counts.  In  one  count,  he 
was  charged  with  having  stabbed  with  intent  to  murder;  in  the  other 
count,  with  having  willfully  and  maliciously,  with  a  dangerous  weapon, 
inflicted  a  wound  less  than  mayhem.  The  verdict  found  was,  "Guilty 
of  wounding  less  than  mayhem."    *    *    * 

The  defendant  avers  that  the  verdict,  "Guilty  of  wounding  less  than 
mayhem,"  is  not  responsive  to  the  offenses  charged  in  the  information. 
In  the  first  place,  it  is  evident  that  the  verdict  was  not  a  general  ver- 
dict, but  one  that  the  jury  found  without  special  reference  to  the  of- 
fense charged  in  either  count  of  the  information.  It  was  a  verdict  of 
their  own  selection.  They  had  been  instructed  by  the  court  regarding 
the  form  of  the  verdict,  as  follows :  "You  may  render  one  of  five  ver- 
dicts. (1)  You  may  find  the  prisoner  at  the  bar,  'Guilty  as  charged 
in  the  first  count  of  the  information;'  (3)  you  may  find  him,  'Guilty 
of  stabbing  with  a  dangerous  weapon  with  intent  to  kill,'  as  charged 
in  the  first  count;  (3)  you  may  find  him,  'Guilty  as  charged  in  the 
second  count ;'  (4)  you  may  find  him,  'Not  guilty ;'  or  (5)  you  may 
find  him,  'Not  guilty,  on  the  ground  of  insanity.'  If  you  find  the  de- 
fendant was  insane  at  the  time  of  the  commission  of  the  act,  you  should 

**  Fart  of  this  case  is  omitted. 


Ch.  12)  TRIAL.  345 

qualify  your  verdict  of  'Not  guilty'  by  the  addition  of  the  phrase  'on 
the  ground  of  insanity.'"  The  jury  did  not  follow  the  instruction. 
It  was  within  their  power  to  find  a  particular  verdict  in  language  of 
their  own,  and  if  it  covers  an  offense  denounced  by  the  statute,  or  an 
offense  of  a  lower  degree,  included  under  the  terms  and  conditions  of 
the  offense  charged,  it  would  be  a  sufficient  verdict. 

Taking  an  example  of  the  most  ordinary  sort,  the  charge  being 
murder,  the  jury  may  find  the  defendant  guilty  of  manslaughter;  or, 
the  charge  being  burglary,  if  larceny  only  be  proven  the  accused  may 
be  found  guilty  of  larceny;  so  in  all  cases  of  oft'ense  of  less  degree 
of  the  same  class.  But  the  finding  of  the  jury  in  such  cases  must  be 
of  an  offense  complete  in  itself.  The  offense  must  be  completely  stated. 
No  valid  judgment  can  be  pronounced  upon  the  partial  verdict,  which 
fails  to  find  the  ingredients  essential  to  constitute  the  crime. 

To  illustrate  by  another  example  of  a  familiar  kind:  If  a  jury  were 
to  return  in  court  that  an  accused  was  guilty  of  taking  the  goods  of 
another  without  any  intimation  as  to  the  asportation  and  appropriation 
of  the  goods,  it  is  useless  to  state  that  the  finding  would  be  void.  Not 
so  if  they  were  to  return  that  he  is  "guilty  of  larceny,"  for  that  word 
embraces  all  the  ingredients  essential  to  constitute  the  crime  of  steal- 
ing. Larceny,  manslaughter,  and  other  words  denoting  crimes  have 
a  well-defined  meaning.  They  are  in  themselves  a  definition.  No  one 
can  be  misled,  or  there  need  not  be  the  least  confusion,  when  these 
names  are  made  use  of.  If  the  jury  undertakes  to  define  the  crime, 
it  should  be  by  a  name  in  which  there  can  arise  no  confusion  or  am- 
biguity, or,  if  it  is  not  identifiable  by  a  well-known  name,  then  the  de- 
scription should  include  the  essentials  to  constitute  the  crime.  In  one 
case  in  this  state,  the  court  went  to  the  extreme  of  holding  that  only 
a  general  verdict  could,  under  the  law,  be  found.  State  v.  Jurche,  17 
La.  Ann.  71.     That  limit,  properly,  has  not  always  been  observed. 

Special  and  particular  verdicts  may  be  found  with  the  understand- 
ing that  the  name  of  the  crime  when  it  has  a  name,  or  the  facts  when 
it  has  not,  necessary  to  constitute  the  crime  are  fully  and  explicitly 
stated.  The  court  cannot  supply  the  facts  necessary  to  constitute 
the  crime.  2  Hawk.  P.  C.  622 ;  State  v.  Blue.  84  N.'  C.  809.  "The 
omission  of  any  fact  necessary  to  constitute  the  offense  is  fatal."  3 
Whart.  Cr.  Law,  §  3188.  Where  "intent"  is  one  of  the  essential  in- 
gredients of  the  crime,  it  must  be  found  in  a  special  verdict,  in  order 
to  sustain  a  judgment.  The  crime  denounced  in  the  case  before  us  for 
decision,  we  have  seen,  includes  "intent"  as  an  essential  ingredient. 

No  one,  unless  acting  willfully  and  maliciously  with  intent,  is  guilty 
of  inflicting  a  wound  less  than  mayhem.  In  our  view,  the  verdict 
was  defective.  It  failed  to  find  the  criminal  intent.  It  is  defective 
whether  construed  as  a  special  or  a  partial  verdict.  In  a  very  recent 
case  this  court  held  that  it  was  not  permissible  to  go  beyond  the  words 
used  by  the  jury  in  matters  essential  to  the  finding  that  a  crime  has 
been  committed  by  the  accused.     State  v.  Bellard,  50  La.  Ann.  594, 


346  TRIAL.  (Ch.  12 

23  South.  504,  69  Am.  St.  Rep.  461.  In  another,  also  a  case  recently 
decided  (State  v.  Hearsey,  50  La.  Ann.  373,  23  South.  372),  the  court 
extended  the  rules  of  practice  much  further  than  there  is  any  neces- 
sity of  extending  in  the  case  here.  The  rule  applying  is  sustained  by 
a  number  of  well-considered  decisions,  notably  the  cases  of  United 
States  V.  Buzzo,  18  Wall.  125,  21  L.  Ed.  812,  and  State  v.  Burdon, 
38  La.  Ann.  357.  In  the  former  the  court  said,  in  construing  a  spe- 
cial verdict,  that  the  intention  is  of  the  essence  of  the  crime,  and  is 
not  found  by  the  special  verdict;  no  judgment  can  be  entered  on  the 
verdict.  And,  in  the  latter  cited  case,  the  court,  in  substance,  with 
reference  to  the  finding  of  a  jury,  said:  "What  is  not  found  is  not 
supposed  to  exist" — citing  State  v.  Ritchie,  3  La.  Ann.  512. 

There  are  views  not  in  accord  with  those  we  have  here  expressed. 
The  prosecuting  officers  have  directed  our  attention  to  them,  and  par- 
ticularly to  the  case  of  State  v.  Mason,  42  La.  Ann.  715,  7  South.  668. 
For  the  reasons  before  stated,  we  cannot  adhere  to  the  decision  in 
the  Mason  Case.  W^e  are  constrained  to  adhere  to  decisions  we  before 
cited.     We  think  they  are  correct  in  law. 

It  is  therefore  ordered  and  decreed  that  the  judgment  appealed  from 
is  affirmed. 


REX  y.  MORGAN. 
(Court  of  King's  Bench,  1611.    1  Bulst.  84.) 

Nota,  that  before  this  time,  Termin.  Trin.  8  Jac,  Sir  John  Egerton, 
for-  the  King,  did  prosecute  an  Enditement  of  Murder  against  Ed- 
ward Morgan  of  the  Inner  Temple,  Gentlemen,  for  the  murdering  of 
his  Sonne,  by  him  killed.     *     *     * 

The  Counsell  for  the  King  did  challenge  all  the  Jurors,  and  being 
in  doubt,  of  the  indifferency  of  the  Jury,  and  of  the  sufficiency  of  their 
challenge,  they  doubted,  that  this  Jury  was  returned  on  purpose,  and 
by  great  labouring  in  the  return  of  them,  for  to  make  them  favour- 
able, and  so  for  these,  and  other  causes,  not  named,  they  left  off  their 
proceeding  upon  the  Enditement  (for  the  present)  and  put  in  an  Ap- 
peale  prosecuted  by  the  Second  Sonne  of  Sir  John  Egerton.     *     *     * 

Nota,  that  the  Appeale  being  abated,  by  the  Judgment  of  the  Court 
as  before  appears,  afterwards  the  Prosecutor  for  the  King  did  pro- 
ceed against  Morgan  upon  the  enditement  of  murder  for  killing  of 
Egerton,  and  upon  this  Enditement,  Morgan  having  pleaded  to  it, 
Termin.  Pasch.  9  Jac.  B.  R.  came  to  the  Barre,  and  the  Jury  appear- 
ing, he  was  tried  upon  the  same  Enditement.    *    *    * 

Nota,  that  in  this  Enditement  there  are  three  wounds  mentioned. 
The  Jury  went  together  to  consider  of  the  Evidence,  and  of  the  direc- 
tions to  them  given  by  the  Court,  they  returned,  and  put  their  Ver- 
dict in  writing,  in  as  much,  as  they  did  not  at  all  agree  in  their  Ver- 
dict.    Their  Verdict  was  this,  we  do  finde  the  Defendant  guilty  of 


Ch.  12)  TRIAL.  347 

murder,  (but  not  according  to  the  Enditement)  for  it  is  therein  men- 
tioned, that  he  gave  him  two  wounds,  the  first  was  mortall,  the  which 
was  under  the  right  arme,  and  mentioned  in  the  Enditement,  of  whicli 
mortall  wound,  he  only  died,  and  of  no  other,  and  they  doe  not  finde 
any  third  wound  given,  as  is  mentioned  in  the  Enditement,  and  that 
this  was  done  by  him,  ex  malitia  sua  proecogitata,  and  so  concludes, 
that  if  the  Court  shall  adjudge  this  Fact,  to  be  a  killing  according  to 
the  Enditement,  then  they  do  finde  him  guilty  of  murder,  but  not  oth- 
erwise. The  Court  did  then  declare  to  the  Jury,  that  this  their  Verdict 
thus  given,  is  no  Verdict  at  all.  All  the  Jury  did  agree,  that  the 
wound  under  the  right  arme  was  mortall,  and  that  of  this  wound 
he  died,  and  that  he  was  killed  by  Morgan ;  that  this  killing  was  mur- 
der, and  that  two  wounds  were  by  him  given,  one  of  them  onely  mor- 
tall, and  of  which  he  died,  so  that  they  finde  but  two  wounds  given, 
and  say  nothing  of  the  third,  there  being  three  wounds  laid  in  the 
Enditement,  and  one  only  to  be  mortall,  of  which  he  died,  and  this 
was  all  the  finding  of  the  Jury. 

Williams  and  CrokE,  Justices.  That  this  is  a  good  finding  by  the 
Jury,  they  having  found  the  death  of  the  party  killed,  and  that  he  was 
"killed  by  Morgan,  who  gave  him  two  wounds,  one  of  them  under  the 
right  arme,  which  was  mortall,  of  which  he  died,  and  this  was  mur- 
der, this  is  a  good  verdict,  and  by  this,  they  have  found  the  Prisoner 
guilty  of  murder. 

FlUmming,  Chief  Justice,  difl:'ered  from  them  in  opinion  in  this, 
here  the  Jury  do  finde  two  wounds  to  be  only  given,  and  the  first  of 
them  to  be  mortall,  of  which  he  died,  and  if  this  be  a  dying  according 
to  the  Enditement,  this  they  leave  to  the  Court,  so  that  they  finde  this 
specially  as  before,  so  that  the  Court  were  divided  upon  this  Verdict, 
two  against  one. 

Morgan  the  Prisoner  at  the  Barrc  perceiving  that  the  Court  did 
not  agree,  but  differed  in  opinion,  moved  the  Court  for  to  accept  of 
Baile  for  him.  The  Court  all  denyed  to  accept  of  Bayle  for  him,  and 
as  for  the  Verdict  thus  given  by  the  Jury  of  this.  Curia  advisari  vult, 
and  so  the  matter  was  adjourned  until  another  time,  and  Morgan  the 
Prisoner  was  carried  away  from  the  Barre,  in  Custodia. 

Nota,  that  afterwards  the  last  day  of  Trinity  Terme  9.  Jac.  B.  R. 
Edward  Morgan  was  brought  again  to  the  Barre,  and  being  demanded 
what  he  had  to  say  for  himself,  why  Judgement  and  Execution  shoukl 
not  be  awarded  against  him,  he  ofifered  to  the  Court,  the  King's  gra- 
cious Pardon,  under  the  Privy,  and  the  great  Scale,  and  he  humbly 
desired  allowance  of  the  same  by  the  Court,  the  Pardon  was  received, 
and  openly  read,  and  afterwards  the  same  was  allowed  of  by  the  Court, 
with  some  good  advice  by  them  given  unto  him,  and  so  by  the  Rule  of 
the  Court,  he  was  discharged,  set  at  libertie  and  suflfered  ad  largum 
ire.^^ 

15  Part  of  this  case  is  omitted. 


348  TRIAL.  (Ch.  12' 

BURDEN  V.  STATE. 

(Supreme  Court  of  Mississippi,  1908.     45  South.  705.) 

Chester  Burden  was  convicted  of  assault  and  battery  with  intent 
to  commit  manslaughter,  and  sentenced  to  the  penitentiary,  and  he  ap- 
peals.    Reversed  for  proper  sentence. 

Calhoon,  J.  We  find  no  reversible  error  in  this  record,  except  the 
sentence  to  the  penitentiary.  The  verdict  of  the  jury,  in  contempla- 
tion of  law,  was  a  verdict  of  assault  and  battery  simply.  Ex  parte 
Chester  Burden,  92  Miss.  14,  45  South.  1,  131  Am.  St.  Rep.  511. 

Accordingly,  the  case  is  reversed  and  remanded,  in  order  that  ap- 
pellant may  be  sentenced  as  for  assault  and  battery. 

Mayes,  J.,  dissents. 


REX  v.  LORD  FITZWATER. 

(Court  of  King's  Bench,  1675.     2  Lev.  139.) 

Information  in  the  nature  of  a  quo  warranto  for  fishing  in  the  river 
Thames  in  a  place  extending  in  B  in  seven  parishes  as  appears  upon 
the  record. ^^  After  verdict  for  the  defendant  it  was  moved  in  arrest 
of  judgment.  *  *  *  And  afterward  in  Mich,  term  the  verdict  was 
set  aside  upon  affidavits  that  the  jury  cast  lots  for  their  verdict  and 
gave  verdict  according  to  the  lot.    *    *    *  ^^ 


GLIDEWELL  v.  STATE. 

(Supreme  Court  of  Tennessee,  iSSo.    15  Lea,  133.' 

Wilson,  Special  Judge,  delivered  the  opinion  of  the  court.^^  *  *  * 
The  next  contention  is  that  the  verdict  should  have  been  set  aside, 
and  a  new  trial  granted,  because,  as  it  is  shown  by  the  affidavits  of 
two  of  the  jurors,  the  jury,  in  considering  of  their  verdict,  differed 
among  themselves  as  to  the  time  the  prisoner  should  be  imprisoned, 
and  therefore  it  was  agreed  among  them  that  each  juryman  should 
set  down  the  time  he  was  for,  and  the  product  of  the  aggregate  divided 
by  twelve  was  to  be  accepted  and  returned  as  the  verdict  of  the  jury, 
which  was  done.  If  the  facts  were  this  way,  they  would  clearly,  un- 
der our  authorities,  vitiate  the  verdict,  and  it  should  be  set  aside. 
But  upon  a  careful  examination  of  the  record  we  find  the  facts 

18  Part  of  this  case  is  omitted. 

17  Accord:  White  v.  State,  37  Tex.  Cr.  R.  651,  40  S.  W.  789  (1897).  In 
Vaise  v.  De  Laval,  1  Term  R.  11  (1785),  Lord  Mansfield  refused  to  receive  as 
evidence  affidavits  of  a  juror  that  the  jury  had  determined  their  verdict  by 
lot.    But  see  White  v.  State,  37  Tex.  Cr.  R.  651,  40  S.  W.  789  (1897). 

18  Part  of  this  case  is  omitted. 


Cb.  12>  TRIAL.  349 

to  be  otberwise,  even  as  detailed  by  the  jurors  who  give  their  affidavits. 
Each  juror,  it  seems,  did  set  down  or  announce  the  time  or  number 
of  years  he  thought  the  prisoner  ought  to  be  conhned,  and  the  result 
of  this  aggregate  divided  by  twelve  was  the  verdict  agreed  upon  and 
returned  by  the  jury.  But  there  was  no  agreement  or  understand- 
ing, expressed  or  implied,  tacit  or  otherwise,  before  this  aggregation 
and  division  were  made,  that  the  result  should  be  their  verdict ;  nor 
was  it  in  any  way  to  bind  the  assent  or  influence  the  judgment  of  the 
individual  members  of  the  jury. 

And  it  is  the  fact  of  an  agreement  or  understanding,  before  this 
method  of  reaching  a  result  is  adopted,  or  while  it  is  in  process  of 
execution,  to  be  bound  by  its  result,  and  to  accept  it,  that  vitiates  the 
verdict.  If  this  be  the  true  test,  much  less  should  we  be  inclined  to 
set  aside  a  verdict,  in  the  absence  of  an  agreement  or  understanding 
beforehand  to  be  bound  by  the  result  reached  under  this  method,  when 
we  can  see  that  the  method  and  its  result  were  not  even  used  as  an  ar- 
gument with  any  member  of  the  jury  to  secure  his  acquiescence  in  the 
result.  No  authority  we  have  been  able  to  find,  certainly  none  in  this 
state,  holds  that  a  verdict  is  vitiated  simply  because  the  jury  put  down 
the  time  each  was  for  confining  the  prisoner  on  trial  before  them, 
added  all  of  them  together,  divided  the  total  by  twelve,  and  adopted, 
after  consultation  and  agreement,  the  product  as  their  verdict,  when 
there  was  no  agreement  or  understanding  beforehand  to  do  so,  and 
when  the  method  adopted  and  its  result  were  not  used  as  an  argu- 
ment to  influence  an  unwilling  or  hesitant  mertiber  to  acquiesce  in  it. 
This  is  the  category  in  which  we  find  this  case.     *     *     * 

The  judgment  of  the  court  below  is  therefore  reversed,  and  the 
cause  will  be  remanded  for  a  new  trial. ^® 

19  Accord:  Thompson's  Case,  8  Grat.  (Va.)  637  (1851);  Cochlin  v.  People, 
93  111.  410  (1879). 


350  NEW   TRIAL.  (Ch,  13 

CHAPTER  XIII 
NEW  TRIAL 


REX  V.  INHABITANTS  OF  OXFORD. 

(Court  of  King's  Bench,  1811.     13  East,  411.) 

This  indictment,  for  the  nonrepair  of  a  pubHc  bridge  over  the  river 
Cherwell,  called  Enslow  Bridge,  within  the  county  of  Oxford,  was- 
preferred  at  the  assizes  for  the  county  of  Oxford,  and  was  tried  be- 
fore Lawrence,  J.,  at  the  last  assizes  at  Oxford,  when  the  defend- 
ants were  found  guilty ;  the  question  made  at  the  trial  being  whether 
certain  persons  were  bound  to  the  repair  ratione  tenurse.    And  now 

Jervis,  on  behalf  of  the  defendants,  prayed  the  court  for  a  certiorari 
to  remove  the  indictment  and  proceedings  into  this  court,  for  the  pur- 
pose, as  he  stated,  of  moving  for  a  new  trial ;  the  verdict  being  against 
the  evidence  and  the  direction  of  the  learned  judge  who  presided  at 
the  trial.  He  admitted  that  in  case  of  The  King  v.  Elizabeth  Nicoll, 
14  East,  211,  note,  where  the  proceedings  on  an  indictment  at  Hick's 
Hall  for  a  conspiracy  were  removed  by  certiorari  between  verdict  and 
judgment,  this  court,  referring  to  The  King  v.  Baker,  said  that  they 
could  not  give  judgment,  not  being  apprised  of  the  circumstances  of 
the  offense.  But  that  difficulty  will  not  arise  in  this  case,  where  the 
object  is  to  bring  the  whole  evidence  in  review  before  the  court  upon 
the  learned  judge's  report.  It  is  of  great  consequence  to  those  con- 
cerned that  a  verdict  given  against  evidence  and  the  direction  of  the 
judge  should  in  some  mode  or  other  be  corrected. 

Lord  ElIvEnborougii,  C.  J.  It  is  also  of  great  consequence  that 
we  should  not,  without  precedent,  and  against  authority  intrude  upon 
all  the  inferior  jurisdictions  in  the  kingdom  (for  if  we  do  it  in  one 
case,  there  is  no  reason  why  we  should  not  be  called  upon  to  do  it  in 
all),  by  removing  hither  their  proceedings  after  verdict  and  before 
judgment,  for  the  purpose  of  examining  the  evidence  on  which  the 
verdicts  have  been  obtained.  There  would  be  no  end  of  such  investi- 
gations. But  I  would  not  have  the  notion  for  a  moment  entertained 
that  we  have  the  power  of  entering  into  the  merits  of  verdicts,  and 
granting  new  trials  in  proceedings  before  inferior  jurisdictions. 

Bayi,e;y,  J.,  assenting,  the  certiorari  was  denied. 


oil.  13)  NEW   TRIAL.  i5jl 

GRAY  V.  COMMONWEALTH. 
(Supreme  Court  of  Pennsylvania,  1882.    101  Pa.  380,  47  Am.  Rep.  733.) 

Paxson,  J.^  This  cause  was  argued  here  as  upon  a  motion  for  a 
new  trial,  and  two  of  the  assignments  of  error  are  to  the  refusal  of 
the  court  to  grant  it.  We  ought  not  to  be  called  upon  at  this  late  day 
to  say  that  it  is  not  within  the  line  of  our  recognized  duties  to  correct 
supposed  errors  in  the  lower  courts  in  this  manner.  Nor  are  capital 
cases  an  exception  to  this  rule.  We  are  not  jurors,  and  are  not  called 
upon  to  weigh  the  evidence  even  when  a  human  life  is  at  stake,  fur- 
ther than  to  say,  when  called  upon  to  do  so  in  an  orderly  manner, 
whether  there  is  sufficient  evidence  to  submit  to  the  jury  upon  a  par- 
ticular question  of  fact.  If  the  jury  make  a  mistake,  the  remedy  is  a 
motion  for  a  new  trial  in  the  court  below.  If  a  new  trial  is  refused, 
where  upon  the  evidence  it  ought  to  have  been  granted,  and  the  judg- 
ment is  affirmed  here  upon  the  law  of  the  case,  the  only  remedy  is  an 
appeal  to  the  pardoning  power.  It  is  foreign  to  our  duties  to  inter- 
fere in  such  cases,  nor  do  we  see  that  any  practical  good  would  result 
from  our  assuming  such  a  jurisdiction.  It  is  better  for  the  admin- 
istration of  the  criminal  law  that  each  department  of  the  government 
concerned  therein  should  confine  itself  to  those  duties  which  the  law 
has  assigned  to  it,  and  which  long  experience  has  shown  to  be  wise 
and  proper.     *    *    * 

The  judgment  is  affirmed. 


COMMONWEALTH  v.  GREEN. 

(Supreme  Judicial  Court  of  Massachusetts,  Suffolk  and  Nantucket.  1S22.     17 

Mass.  515.) 

Parker,  C.  J.^  The  prisoner,  having  been  convicted,  by  the  ver- 
dict of  a  jury,  of  the  crime  of  murder,  at  the  last  term  of  the  court, 
moved  for  a  new  trial,  because,  as  alleged  in  his  motion  one  Sylvester 
Stoddard,  who  had  been  sworn  as  a  witness  on  the  part  of  govern- 
ment, and  who  had  testified  to  the  jury,  had  been  convicted  of  the 
crime  of  larceny,  in  a  court  having  jurisdiction  of  the  offense,  within 
the  state  of  New  York,  whereby,  as  is  alleged,  he  was  rendered  in- 
famous, and  for  that  reason  his  testimony  could  not  be  received  in  a 
court  of  justice  in  this  commonwealth.  A  copy  of  the  record  of  that 
conviction  has  been  produced  in  support  of  the  motion ;   and  sufficient 

1  Part  of  this  case  is  omitted. 

"The  refu.sal  of  a  motion  for  a  new  trial  is  an  error  in  law  only  when  it  is 
apparent  that  such  refusal  amounts  to  a  clear  abuse  of  discretion."  AVilliams, 
J.,  in  Commonwealth  v.  Roddy,  184  Pa.  21)2.  39  Atl.  211  (1898).  Cf.  People 
V.  Francis,  52  IMich.  575.  IS  N.  W.  364  (1884) ;  Omeara  v.  State,  17  Ohio  St. 
515  (1867) ;  Reinhart  v.  State,  45  Ind.  147  (1873). 

2  Part  of  this  case  is  omitted. 


352  NEW   TRIAL.  (Cll.  13 

evidence  has  been  given  to  satisfy  the  court,  for  the  purpose  of  sus- 
taining this  motion,  that  the  Sylvester  Stoddard,  who  was  sworn  and 
examined  on  the  trial  of  the  prisoner,  was  the  subject  of  that  convic- 
tion. It  appeared  also,  that  judgment  was  rendered  upon  that  con- 
viction, and  was  executed  upon  the  convict,  within  the  public  prison 
of  the  state  of  New  York. 

It  has  been  argued  by  the  Attorney  and  Solicitor  General,  that  by 
law  a  new  trial  cannot  be  granted  of  a  capital  felony ;  and  it  appears 
by  the  English  text-books,  and  by  several  decisions  cited  in  support 
of  the  position,  that  in  cases  of  felony,  a  new  trial  is  not  usually  al- 
lowed by  the  courts  of  that  country.  But  whatever  reasons  may  ex- 
ist in  that  country  for  this  practice,  we  are  unable  to  discern  any  suf- 
ficient ground  for  adopting  it  here. 

*  That  a  prisoner,  who  has  been  tried  for  a  felony,  and  acquitted, 
should  not  be  subjected  to  a  second  trial  for  the  same  offense,  seems 
consistent  with  the  humane  principles  of  the  common  law,  in  relation 
to  those  whose  lives  have  been  once  put  in  jeopardy.  But  the  same 
humane  principles  would  appear  to  require  that,  after  a  conviction,  a 
prisoner  should  be  indulged  with  another  opportunity  to  save  his  life, 
if  anything  had  occurred  upon  the  trial  which  rendered  doubtful  the 
justice  or  legality  of  his  conviction.  "Nemo  bis  debet  vexari,  pro  una 
et  eadem  causa,"  is  a  maxim  of  justice,  as  well  as  of  humanity,  and 
was  established  for  the  protection  of  the  subject  against  the  oppres- 
sions of  government.  But  it  does  not  seem  a  legitimate  consequence 
of  this  maxim  that  one  who  has  been  illegally  convicted  should  be  pre- 
vented from  having  a  second  inquiry  into  his  offense,  that  he  may  be 
acquitted,  if  the  law  and  the  evidence  will  justify  an  acquittal. 

It  is  true  that,  in  England,  the  utmost  caution  is  used  on  capital 
trials  in  favor  of  life;  and  if  an  irregularity  materially  affecting  the 
trial  occurs  to  the  injury  of  the  accused,  the  court  usually  represents 
such  matter  to  the  crown,  and  a  pardon  is  generally  granted.  But  it 
is  the  right  of  every  subject  of  that  country,  and  of  every  citizen  of 
this,  to  have  a  fair  and  legal  trial  before  his  peers,  the  jury;  and  it  is 
hardly  consistent  with  that  right  that  it  should  be  left  to  the  will  or 
discretion  of  the  judge  whether  a  representation  of  an  actual  irreg- 
ularity shall  be  made  to  the  pardoning  power,  or  to  the  discretion 
of  the  latter  whether  that  power  shall  be  exercised  in  favor  of  a  per- 
son unlawfully  convicted. 

Where  the  error  appears  of  record,  in  either  country,  the  court  will 
arrest  the  judgment  after  a  verdict  of  guilty;  and  the  party  may  be 
again  indicted,  and  tried,  for  the  same  offense.  If  the  error  does  not 
appear  of  record,  but  arises  from  inadvertency  of  the  judge  in  reject- 
ing or  admitting  evidence,  or  from  misbehavior  of  the  jury,  or  other 
cause  which  would  be  good  ground  for  a  new  trial  in  civil  actions  or 
misdemeanors,  justice  and  consistency  of  principle  would  seem  to  de- 
mand that  the  person  convicted  should,  upon  his  own  motion,  have  an- 
other trial,  instead  of  being  obliged  to  rely  upon  the  disposition  of 


Ch.  13)  NEW   TRIAL.  353 

the  court  to  recommend  a  pardon,  or  of  the  executive  power  to  grant 
it.  It  is  not  enough  that  the  Hfe  of  the  accused  will  generally  be  safe 
in  the  hands  of  such  highly  responsible  public  agents.  The  right  of 
the  subject  to  be  tried  by  his  peers,  according  to  the  forms,  as  well  as 
principles,  of  law,  is  the  only  certain  security  that  at  all  times  and  un- 
der all  circumstances  that  protection  which  the  Constitution  extends 
to  all  will  be  effectually  enjoyed. 

Nor  is  it  for  the  public  safety  and  interest  that  new  trials  should 
be  refused  in  such  cases;  for  it  must  be  obvious  that  in  most  cases 
of  irregularity,  which  would  be  a  good  cause  for  another  trial,  if  in 
the  power  of  the  court  to  grant  it,  a  pardon,  upon  the  representation 
of  the  court,  would  be  thought  to  follow  of  course,  and  thus,  in  many 
cases,  public  justice  might  be  prevented  on  account  of  defect  in  form, 
or  some  irregularity,  not  affecting  the  merits  of  the  case,  which  mis- 
chief might  be  avoided  by  another  trial. 

For  these  reasons  we  think  there  is  a  power  in  this  court  to  grant 
a  new  trial  on  the  motion  of  one  convicted  of  capital  offense,  sufficient 
cause  being  shown  therefor,  notwithstanding  the  English  courts  are 
supposed  not  to  exercise  such  authority;  and  if  this  opinion  needs 
support,  the  case  of  John  Fries,  who,  after  conviction  of  treason,  was 
tried  a  second  time,  and  the  case  in  South  Carolina,  cited  at  the  bar 
from  Bay's  Reports,  are  sufficient  for  this  purpose.  In  the  case  of 
United  States  v.  Fries,  3  Dall.  (Pa.)  515,  Fed.  Cas.  No.  5,126,  1  L. 
Ed.  701,  Mr.  Rawle,  the  district  attorney,  admitted  the  power  of  the 
court  to  grant  a  new  trial,  and  argued  only  against  the  propriety  of 
exercising  the  power  in  that  case.  Judge  Iredell  expressly  admitted 
the  power,  and  Judge  Peters,  who  was- against  a  new  trial,  although 
he  yielded  to  the  Circuit  Judge,  did  not  deny  the  authority  of  the 
court  to  grant  it.  In  a  late  case,  also,  in  New  York,  People  v.  Good- 
win, 18  Johns.  187,  9  Am.  Dec.  203,  which  was  a  case  of  felony,  it 
was  decided  that  the  cause  might  be  taken  from  the  jury,  and  a  new 
trial  ordered. 

Assuming,  then,  that  this  court  has  the  power  to  grant  a  new  trial 
in  cases  like  the  one  before  us,  we  are  to  inquire  whether  the  facts 
upon  which  the  present  motion  is  founded  are  of  a  nature  to  require 
the  exercise  of  that  power,  and,  if  not,  whether,  in  the  discretion  of 
the  court,  it  ought  now  to  be  exercised.    *    *    * 

It  being  the  rule,  then,  that  objections  to  the  competency  of  a  wit- 
ness, founded  on  conviction  of  crime,  must  be  made  at  the  trial,  and 
when  the  witness  is  offered  to  be  sworn,  it  follows  that,  because  a 
witness  was  sworn  in  the  cause,  who  is  since  found  to  have  been  so 
convicted,  the  trial  was  not  for  that  cause  erroneous  or  irregular,  and 
a  new  trial  on  that  account  cannot  be  demanded  as  a  right.  Whether 
this  fact  furnishes  a  sufficient  ground  for  the  discretion  of  the  court 
to  grant  a  new  trial  depends  upon  other  circumstances,  which  will 
hereafter  be  stated.  The  trial  cannot  be  impeached  because  a  witness, 
Mik.Cr.Pb.— 23 


354  NEW   TKIAL.  (Ch.  13 

against  whom  there  was  no  legal  objection  at  the  time,  is  afterwards 
discovered  to  have  been  liable  to  an  exception  which,  if  known,  would 
have  excluded  his  testimony.    *    *     * 

Certainly  cases  may  arise  when  the  exercise  of  this  power  in  the 
court  would  be  salutary  and  wise ;  but  every  case  of  discretion  must 
depend  upon  its  circumstances,  and  be  judged  of  with  due  regard  to 
the  rights  of  the  public,  as  well  as  the  interest  of  the  prisoner.  In 
cases  which  affect  life,  duty  as  well  as  inclination  would  insure  the 
most  favorable  consideration  of  all  circumstances  which  might  have 
a  tendency  to  protect  innocence  from  punishment,  and  even  to  extend 
to  the  guilty  all  the  legal  advantages  of  a  trial.  But  when  there  has 
been  a  trial,  which  the  court  are  satisfied  was  fair  and  impartial,  and 
in  which  all  the  legal  rights  of  the  party  accused  were  observed,  and 
a  new  trial  is  sought  for,  the  court  are  bound  to  look  into  the  evidence 
upon  which  the  verdict  was  founded,  in  order  that  they  may  ascertain 
whether  the  cause  suggested  in  support  of  the  motion  is  such  as  would 
or  ought  to  produce  a  different  result  in  the  minds  of  another  intel- 
ligent jury.  It  is  true,  it  cannot  be  known  what  effect  may  be  pro- 
duced upon  other  men's  minds  by  any  specific  kind  or  degree  of  evi- 
dence, and  with  that,  in  the  course  of  the  trial,  the  court  have  no  con- 
cern ;  but  on  a  motion  to  their  discretion  they  must  necessarily  revise 
the  evidence,  and  must  judge  for  themselves  of  the  probable  bearing 
of  the  circumstances  relied  on  to  support  the  motion. 

Having  decided  that  to  grant  new  trials  in  capital  cases  is  within 
the  power  of  the  court,  and  that  the  exercise  of  this  power,  where 
there  has  been  no  error  on  the  trial,  is  discretionary,  if  every  sugges- 
tion should  be  Hstened  to,  without  regard  to  the  merits  of  the  case, 
or  the  just  bearing  of  the  fact  suggested,  it  is  certain  that  the  course 
of  public  justice  would  be  much  obstructed,  and  that  the  punishment 
of  crimes  would  often  be  evaded.  It  is  a  power  to  be  used  sparingly 
for  the  protection  of  innocence,  not  to  screen  the  guilty. 

Now,  in  the  case  before  us,  the  only  advantage  the  prisoner  would 
have  on  another  trial,  which  he  had  not  before,  would  be  to  show 
that  Stoddard,  one  of  the  witnesses  who  testified  against  him,  was 
not  deserving  of  credit,  because  he  had  been  convicted  of  larceny  in 
New  York.  If  this  witness  had  gone  to  the  jury  wholly  unimpeached, 
and  his  testimony  had  been  material  and  uncorroborated,  the  case 
would  be  a  strong  one  for  the  exercise  of  the  discretion  of  the  court 
in  granting  another  trial. 

But  this  witness  was  impeached  at  the  trial,  by  the  evidence  of  two 
convictions  of  larceny  within  the  commonwealth ;  and  it  was  known 
to  the  jury  that  he  had  but  just  left  the  public  prison,  under  a  par- 
don granted  by  the  executive,  for  the  sole  purpose  of  rendering  him  a 
competent  witness.  Surely  evidence  of  another  conviction  of  a  sim- 
ilar offense  in  another  state,  of  which  he  had  not  been  pardoned, 
would  have  added  nothing  to  the  weight  of  evidence  against  his  cred- 
ibility.    He  was  considered  as  a  degraded  person,  both  by  the  court 


Ch.  13)  NEW   TRIAL.  05o 

and  jury;  and  in  the  charge  to  the  latter  by  the  court  they  were  ex- 
pressly told  that,  unless  they  found  his  testimony  corroborated  by  un- 
impeached  witnesses,  he  ought  not  to  be  believed.  The  same  observa- 
tions applied  to  another  witness,  who  appeared  under  similar  circum- 
stances. 

In  the  opinion  of  the  court,  there  w^as  sufficient  evidence  to  justify 
the  verdict  without  the  testimony  of  either  of  those  men.     *     *     * 

Under  these  circumstances,  to  grant  a  new  trial  would  be  only  to 
prolong  the  suspense  and  increase  the  anxiety  of  the  prisoner,  with- 
out any  final  advantage  to  him ;  and  we  do  not  feel  authorized  to  sur- 
render the  principles  of  justice  to  feelings  of  compassion  or  sympathy. 

Motion  overruled.^ 

3  Compare  State  v.  David,  14  S.  C.  428  (18.S1). 

"Besides  writs  of  error,  motions  for  new  trials  are  pei'mitted  in  some  cases 
of  misdemeanor,  namely,  cases  of  misdemeanors  tried  before  the  (Queen's 
Bencli  Division  in  tlie  exercise  of  its  original  jurisdiction,  or  sent  down  by 
that  division  to  be  tried  at  the  Assizes  on  the  nisi  prius  side.  If  a  misde- 
meanor is  tried  before  commissioners  of  oyer  and  terminer  at  the  Assizes 
or  at  the  Quarter  Sessions,  the  Queen's  Bench  Division  will  not  after  verdict 
remove  the  case  by  certiorari,  with  a  view  to  granting  a  new  trial.  If  the 
parties  wish  to  have  the  possibility  of  applying  for  a  new  trial,  or  to  have  a 
special  jury,  their  course  Is  to  apply  for  a  certiorari  before  the  case  comes  on 
to  be  tried.  If  the  court  Is  satisfied  that  questions  of  difficulty  are  likely  to 
arise  they  will  issue  a  certiorari,  and  either  have  the  case  tried  before  the 
Queen's  Bench  Division  at  Westminster,  or  send  it  down  to  be  tried  as  a 
nisi  prius  record  at  the  Assizes  or  in  the  city  of  London.  When  the  case  is 
so  tried  a  new  trial  may  be  moved  for  on  the  ground  of  misdirection,  that 
the  verdict  was  against  the  evidence,  or  on  other  groinids  on  which  new  trials 
are  moved  for  in  civil  cases.  According  to  Chittj',  the  first  instance  of  such 
a  new  trial  was  in  the  year  1655.  One  case  only  has  occurred  in  which  a 
new  trial  was  granted  for  felony,  and  that  case  was  afterwards  disapproved 
of  and  not  followed  by  the  Judicial  Committee  of  the  Privy  Council  in  R.  v. 
Bertrand,  L.  R.  1  P.  C.  520.  It  is  very  remarkable  that  in  the  argument  upon 
R.  V.  Scaife,  no  notice  was  taken  of  the  novelty  of  the  proceeding."  Stephen's 
Hist.  Grim.  Law,  p.  310. 

"It  was  contended  on  behalf  of  the  prosecutor  that,  as  two  of  the  defend- 
ants had  been  acquitted,  the  record  could  not  be  sent  down  again  to  another 
trial  without  putting  their  guilt  or  Innocence  again  into  a  state  of  inquiry, 
and  that,  inasmuch  as  defendants  who  have  been  acquitted  in  criminal  cases 
cannot  be  tried  a  second  time,  the  necessary  consequence  was  that  in  this  case 
we  could  not  grant  a  new  trial,  even  though  we  were  clearly  of  opinion  that 
the  other  two  defendants  had  been  improperly  convicted.  If  such  were  the 
rule,  it  would  bear  extremely  hard  on  particular  persons  accused;  for  then, 
however  unjust  the  verdict  against  some  of  the  defendants  might  appear  to  be. 
and  though  it  should  turn  out  beyond  all  contradiction  that  the  verdict  had 
been  obtained  by  the  grossest  perjury,  the  guilt  of  those  defendants  must 
necessarily  stand  on  record,  provided  one  defendant,  perhaps  included  in  the 
indictment  for  the  very  puipose,  were  acquitted.  But  I  think  that  the  rule 
was  correctly  stated  by  the  counsel  for  the  defendants  that  in  granting  new 
trials  the  court  know  no  limitations  (except  in  some  excepted  cases),  but  they 
will  either  grant  or  refuse  a  new  trial  as  it  will  tend  to  the  advancement  of 
justice.  In  one  class  of  offenses,  indeed,  those  greater  than  misdemeanors,  no 
new  trial  can  be  granted  at  all.  But  in  misdemeanors  there  is  no  authority 
to  shew  that  we  cannot  grant  a  new  trial  in  order  that  the  guilt  or  innocence 
of  those  who  have  been  convicted  may  be  again  examined  into."  Kenyou,  C, 
J.,  in  Rex  v.  Mawbey,  C  Term  R.  G3S  (179G). 


35G  NEW  TRIAL.  (Ch.  13 

STATE  V.  EAVES. 

(Supreme  Court  of  Georgia,  1001.     113  Ga.  749,  39  S.  E.  318.) 

Simmons,  C.  J.*  *  *  *  From  the  indictment  it  may  be  ascer- 
tained that  the  accused  is  charged  with  the  violation  of  a  certain  penal 
statute.  The  accused  contended  that  this  act  was  no  longer  in  force  in 
Bartow  county,  having  been  superseded  by  another  act.  He  sought  to 
make  the  question  in  the  lower  court  by  requesting  the  judge  to  instruct 
the  jury  that  a  conviction  could  not  be  had  under  the  indictment.  In 
the  motion  for  new  trial  complaint  is  made  that  the  judge  refused  to  so 
charge.  The  motion  also  sets  up  that  the  verdict  is  contrary  to  law, 
in  that  the  indictment  was  based  upon  this  inoperative  statute.  The 
question  was  not  raised  by  demurrer  to  the  indictment,  the  allegations 
of  which  were  sufficiently  established  by  the  evidence.  There  was  no 
motion  to  quash  the  indictment.  The  question  was  never  properly 
raised.  If  the  plaintiff  in  error  was  indicted  under  a  law  no  longer 
in  force,  and  the  indictment  is  fatally  defective,  he  does  not  want  a  new 
trial  under  that  indictment.  "In  such  a  case  the  remedy  is  by  general 
demurrer  before  a  trial  on  the  merits,  or  by  motion  in  arrest  after  ver- 
dict."   Roberts  v.  Keeler,  111  Ga.  186,  36  S.  E.  617. 

After  going  to  trial  upon  the  merits  without  objection  to  the  indict- 
ment, the  accused  could  not  properly  ask  the  direction  of  a  verdict 
in  his  favor  because  of  the  insufficiency  of  the  indictment.  See  Bray 
v.  Railroad  Co.,  113  Ga.  308,  38  S.  E.  849 ;  Strouse  v.  Kelly,  113 
Ga.  575,  38  S.  E.  957.  Nor  can  this  point  be  made  in  a  ground  of  a 
motion  for  a  new  trial  complaining  that  the  verdict  is  contrary  to  law 
and  the  evidence.  See  Phillips  v.  Railway  Co.,  112  Ga.  197,  37  S.  E. 
418  ;  Roberts  v.  Keeler,  supra.  In  the  absence  of  objection  to  such  an 
indictment,  a  conviction  is  authorized  if  the  evidence  sustains  the 
allegations  of  the  indictment  as  laid.  Without  regard,  therefore,  to 
the  merits  of  the  point  sought  to  be  raised,  we  must  affirm  the  over- 
ruling of  these  grounds  of  the  motion  for  new  trial. 

The  verdict  was  authorized  by  the  evidence.  Judgment  affirmed. 
Cross-bill  dismissed.     All  the  Justices  concurring.^ 

4  Part  of  this  case  is  omitted. 

5  Accord:    State  v.  Taylor,  37  La.  Ann.  40  (1885). 


Ch.  13)  NKW   TRIAL.  357 

BEPLEY  V.  STATE. 

(Supreme  Court  of  ludiaua,  1S53.     4  lud.  204,  58  Am.  Dec.  G2S.) 

Stuart,  J.^  This  was  a  prosecution  for  a  nuisance,  under  the 
seventeenth  section  of  the  act  of  March,  1853,  regulating  the  retail  of 
spirituous  hquors.  Trial  by  jury.  Verdict  and  judgment  for  the 
state.    *    *    * 

There  is  a  technical  point,  well  settled  in  the  books,  but  often  over- 
looked in  practice,  which  would  restrain  us  from  disturbing  the  ver- 
dict, if  we  were  otherwise  so  disposed.  The  defendant  moved  first 
in  arrest  of  judgment.  According  to  the  authorities  he  could  not 
afterwards  take  the  opinion  of  the  court  below  on  the  sufficiency  of  the 
evidence,  by  a  motion  for  a  new  trial,  unless  he  had  brought  himself 
within  some  of  the  recognized  exceptions,  which  he  has  not  done. 
In  the  order  in  which  they  were  made  the  one  motion  was  fatal  to  the 
other.     Rogers  v.  I\Iaxwell,  4  Ind.  243;  .Mason  v.  Palmerton,  2  Ind. 

Per  Curiam.    The  judgment  is  affirmed,  with  costs.'' 

6  Part  of  this  case  is  omitted. 

7  Accord:  Rex  v.  White.  1  Burr.  333  (17.57) ;  Respublica  v.  Lacaze,  2  Dall. 
(Pa.)  lis,  1  L.  Ed.  313  (1791) ;  McComas  v.  State,  11  Mo.  IIG  (1847). 

"A  new  trial  must  be  applied  for  within  tw^o  days  after  the  conviction ; 
but,  for  good  cause  shown,  the  court,  in  cases  of  felony,  may  allow  the  ap- 
plication to  be  made  at  any  time  before  the  adjournment  of  the  tenn  at  wliich 
the  conviction  was  had.  When  the  court  adjourns  before  the  expiration  of 
two  days  from  the  conviction,  the  motion  shall  be  made  before  the  adjourn- 
ment."   Code  Cr.  Proc.  Tex.  1895,  art.  819 ;  Pasch.  Dig.  art.  3130. 

See,  also,  Lawson  v.  State,  71  Ind.  296  (1880) ;  State  v.  Alphin,  81  N.  C.  500 
(1879) ;  Ross  v.  State,  65  Ga.  127  (1880). 


358  AEREST   OF   JUDGMENT.  (Ch.  l-i 

CHAPTER  XIV 
ARREST  OF  JUDGMENT 


STATE  V.  SUTCLIFFE. 

(Court  of  Appeals  of  South  Carolina,  1850.    4  Strob.  372.) 

The  prisoner  was  convicted  at  the  May  term,  1849,  and  an  appeal 
was  taken  in  his  behalf,  which,  after  being  docketed,  was  abandoned. 
On  motion  being  made  for  judgment,  the  prisoner  insisted  that  this 
court  had  no  further  jurisdiction  in  the  matter,  but  that  he  must  be 
remanded  to  await  the  judgment  of  the  circuit  court  at  its  next  term; 
and,  secondly,  he  prayed  the  benefit  of  clergy.^ 

WardIvAW^  j_  *  *  *  /j^j-jg  prayer  for  benefit  of  clergy  is  then 
allowed,  and  the  sentence  for  felony  within  the  benefit  will  now  be 
pronounced.  As  that  has  been,  by  our  statutes,  made  fine  and  im- 
prisonment, the  case  of  the  prisoner  is  just  as  if  he  had  been  indicted 
and  convicted  of  a  misdemeanor,  except  that,  under  the  right  of 
challenge,  he  has  enjoyed  privileges  which  one  accused  of  a  mis- 
demeanor is  not  entitled  to,  and  that  for  a  second  offense,  he  may  here- 
after lose  the  benefit  now  allowed  to  him. 

Richardson,  Evans,  and  Frost,  JJ.,  concurred.  Withers,  J.,  ab- 
sent, from  indisposition. 

The  prayer  for  benefit  of  clergy  was  allowed,  and  the  sentence  for 
felony  within  the  benefit  was  pronounced  by  the  court. 


STATE  v.  ARDEN. 
(Court  of  General  Sessions  of  South  Carolina,  1795.     1  Bay,  487.) 

The  prisoner  was  indicted,  together  with  one  Campbell,  for  the 
murder  of  a  Spanish  seaman  by  the  name  of  Jewets,  and,  at  her  par- 
ticular request,  was  tried  separately.  Campbell  was  convicted  of  man- 
slaughter, but  the  prisoner  of  murder.  On  the  adjournment  day  of  the 
sessions,  when  she  was  brought  up  for  sentence,  - 

The  Court  (present  Burke,  Grimke,  Waties,  and  Bay,  Justices) 
unanimous  that  the  motion  in  arrest  of  judgment  should  be  overruled, 
as  the  prisoner  had  been  indicted  as  a  principal  in  both  counts  of  the 
indictment,  and  the  jury  were  to  judge  of  the  malicious  intent,  of  the 

1  Part  of  this  case  is  omitted. 

2  The  arguments  of  counsel  are  omitted. 


CU.  14)  ARREST   OF   JUDGMENT.  359 

degrees  of  guilt  in  the  parties,  and  to  apply  the  evidence  to  the  differ- 
ent counts  as  they  thought  proper. 

The  prisoner  was  then  asked  if  she  had  anything  to  offer  why 
sentence  of  death  should  not  be  pronounced  against  her.  Upon  which 
she  pleaded  pregnancy.  Whereupon  she  was  remanded  to  gaol,  and 
the  sheriff  was  directed  to  summon  a  jury  of  matrons,  de  ventre  in- 
spiciendo.  The  court  then  adjourned  from  day  to  day,  till  the  in- 
quisition was  found.  It  was  then  returned  by  the  sheriff  into  court, 
under  the  hands  and  seals  of  tv^^elve  matrons,  in  which  they  certified 
that  they  had  examined  the  prisoner,  and  found  that  she  was  not  preg- 
nant. The  prisoner  was  then  brought  up.  and  received  sentence  of 
death,  and  was  afterwards  executed  pursuant  to  the  sentence.* 


STATE  V.  VAXN. 

(Supreme  Court  of  North  Carolina,  18S1.     84  N.  C  722.) 

Proceeding  in  a  criminal  action  at  Fall  term,  18S0,  of  Hertford 
superior  court,  before  Schenck,  J. 

The  prisoner  being  brought  to  the  bar  of  the  court  for  judgment 
pursuant  to  the  decision  of  this  court,  reported  in  83  N.  C.  G31,  was 
asked  if  he  had  anything  further  to  say  than  he  had  already  said  why 
sentence  of  death  should  not  be  pronounced  upon  him,  and  in  an- 
swer thereto  (through  his  counsel)  suggested  that  the  prisoner  since 
his  conviction  had  become  insane,  and  in  support  thereof  produced 
affidavits.  Thereupon  he  demanded  a  jury  trial  of  the  question  of  his 
insanity,  and  asked  for  a  continuance  of  the  cause  until  the  next  term 
to  prepare  for  trial.  The  court  held  that  he  was  entitled  to  a  jury  to 
inquire  into  the  fact,  and,  if  it  should  be  found  favorable  to  the 
prisoner,  the  judgment  must  be  suspended  until  his  sanity  was  restored, 
and  thereupon  remanded  him  to  prison  and  continued  the  case  that  the 
issue  might  be  tried  by  a  jury.  From  this  ruling  the  solicitor  for  the 
state  appealed. 

Smith,  C.  J.*  *  *  *  \i\rQ  concur  entirely  with  the  ruling  of  his 
honor  that  judgment  must  be  suspended  if  the  prisoner  has  become  in- 
sane since  his  trial,  and  is  still  insane,  until  he  recovers  his  reason, 
and  that  an  issue  to  be  submitted  to  the  jury  is  the  proper  mode  of 
ascertaining  the  truth  of  his  allegation.  The  principle  is  thus  laid 
down  by  Lord  Hale:  "If  a  man  in  his  sound  memory  commits  a  capital 
offense,  and  before  his  arraignment  he  becomes  absolutely  mad,  he 
ought  not  by  law  to  be  arraigned  during  such  his  phrensy,  but  be  re- 
mitted to  prison  until  that  incapacity  be  removed.     *     *     *     And  if 

3  In  EuRland  preenanfy  is  not  a  oause  for  avre?*^  '^f  judgment,  but  cau  only 
be  pleaded  In  stay  of  execution.    Chitty.  Cr.  Law,  759. 

4  Part  of  this  case  is  omitted. 


3G0  ARREST   OF   JUDGMENT.  (Ch.   14 

such  person  after  his  plea  and  before  his  trial  become  of  nonsane 
memory,  he  shall  not  be  tried;  or  if  after  his  trial  he  become  of  non- 
sane  memory,  he  shall  not  receive  judgment;  or  if  after  judgment  he 
become  of  nonsane  memory,  his  execution  shall  be  spared ;  for  were 
he  of  sound  memory,  he  might  allege  somewhat  in  stay  of  judgment 
or  execution."  Hale,  P.  C.  34.  The  same  language  is  used  by  Black- 
stone,  and  he  adds:  "For  as  is  observed  by  Sir  Edward  Coke,  the 
execution  of  an  offender  is  for  example,  ut  poena  ad  paucos,  metus  ad 
omnes  perveniat;  but  so  it  is  not  when  a  madman  is  executed,  but 
should  be  a  miserable  spectacle,  both  against  law  and  of  extreme  in- 
humanity and  cruelty,  and  can  be  no  example  to  others.  But  if  there 
be  any  doubt  whether  the  party  be  compos  or  not,  this  shall  be  tried  by 
a  jury."  4  Bl.  Comm.  25.  The  same  rule  is  laid  down  by  the  elemen- 
tary writers  and  may  be  found  in  adjudged  cases.  Shel.  on  Lunacy, 
467;  1  Bish.  Cr.  Law,  §  487;  Freeman  v.  People,  4  Denio  (N.  Y.) 
9,  47  Am.  Dec.  216. 

But,  for  the  reasons  stated,  the  appeal  was  improvidently  taken  and 
must  be  dismissed. 

Fm  Curiam.     Appeal  dismissed.^ 


STATE  V.  CARVER. 

(Supreme  Judicial  Court  of  Maine,  1862.     49  Me.  5SS,  77  Am.  Dee.  2~7,.) 

Davis,  J.®  This  was  an  indictment  against  Carver  and  Lunt,  as 
principals,  and  also  against  Wilson  and  Clapp,  as  accessories  before  the 
fact.  The  first  two,  only,  appear  to  have  been  arrested.  Upon  arraign- 
ment they  pleaded  guilty,  and  afterwards  their  counsel  filed  a  motion  in 
arrest  of  judgment.  This  was  overruled  by  the  court,  and  the  case 
comes  before  us  on  exceptions. 

We  see  no  objection  to  the  indictment  itself  which  can  avail  the 
defendants,  especially  after  the  general  plea  of  "guilty."  The  count 
against  them  as  principals  is  sufficient  in  all  respects ;  and,  without  in- 
tending to  intimate  that  Wilson  and  Clapp  may  not  be  held  upon  the 
same  indictment,  we  are  clearly  of  the  opinion  that  judgment  may  now 
be  entered  upon  the  pleas  of  the  other  defendants. 

Another  ground  of  the  motion  in  arrest  is  that  the  grand  jury,  by 
whom  the  indictment  was  found,  were  "not  legally  drawn,  and  had  no 
power  to  act  in  the  premises."  This  allegation  is  one  of  fact,  as  well 
as  of  law.     The  facts  do  not  necessarily  appear  of  record,  though  in 

5  "We  do  not  understand  that  any  change  in  the  condition  of  the  prisoner 
was  shown  to  have  taken  place  since  the  impaneling  of  the  jury.  It  was 
then,  in  effect,  requiring  the  court  to  aiTest  or  stay  the  judgment,  for  the 
same  reason  which  had  been  unsuccessfully  urged  before  the  jury  in  defense 
of  the  criminal  charge.  We  think  the  circuit  court  properly  refused  to  enter- 
tain the  motion."    Goldthwaite,  J.,  in  State  v.  Brinyea,  5  Ala.  243  (1S43). 

6  Part  of  this  case  is  omitted. 


Ch.  14)  ARREST    OF   JUDGMENT.  3G1 

this  case  the  return  upon  one  of  the  venires  does  not  show  that  one  of 
the  grand  jurors  had  no  authority  to  act  as  such.  State  v.  Clough,  49 
Me.  573.  But  neither  the  venire,  nor  the  return,  constitutes  any  part 
of  the  record  of  this  particular  case.  The  proceedings  of  the  depart- 
ments of  the  government,  of  counties  and  towns,  and  officers  of 
counties  and  towns,  are  all  brought  into  requisition  in  order  to  con- 
stitute the  court.  Some  of  these  are  matters  of  record  in  the  court, 
of  which  judicial  notice  will  be  taken,  without  other  proof.  But,  if 
pleaded,  they  are  to  be  pleaded  as  matters  of  fact,  however  proved. 
They  are  proceedings  preliminary  to  the  organization  of  the  court,  and 
not  proceedings  of  the  court  after  it  is  organized.  A  motion  in  arrest 
of  judgment  in  any  particular  case  does  not  necessarily  bring  them 
before  us.  They  cannot  be  brought  before  us  except  by  being  plead- 
ed specially ;  and  they  cannot  be  pleaded  in  such  a  motion  with  any 
more  propriety  than  any  other  extrinsic  facts. 

A  motion  in  arrest  of  judgment,  in  many  of  the  states,  is  sub- 
stantially a  motion  for  a  new  trial,  often  for  reasons  entirely  extrinsic 
of  the  record.  But,  at  common  law,  "judgment  can  never  be  arrested 
but  for  that  which  appears  upon  the  record  itself."  Peachy  v.  Harri- 
son, 1  Ld.  Raym.  232,  1  Salk.  77;  Sutton  v.  Bishop,  4  Burr.  2283, 
2287.  The  same  rule  prevails  in  this  country.  Such  a  motion  can 
only  be  made  "on  account  of  some  intrinsic  defect,  apparent  on  the 
face  of  the  record,  which  would  render  the  judgment  in  the  case  erro- 
neous." Howe's  Practice,  533  ;  Bedell  v.  Stevens,  8  Post.  (N.  H.)  118  ; 
Burnett  v.  Ballund,  2  Nott  &  McC.  (S.  C.)  435;  State  v.  Bangor,  38 
Me.  592,  and  cases  there  cited. 

That  the  "record"  referred  to  in  these  decisions  is  the  record  of  the 
particular  case  under  consideration  was  expressly  held  in  the  case  last 
cited.  It  was  alleged  in  the  motion  that  another  indictment  for  the 
same  offense  was  found  at  the  same  term  of  the  court.  But  it  was  de- 
cided that  such  a  motion  would  not  be  entertained  where  proof  was  re- 
quired to  sustain  it,  though  the  proof  was  a  matter  of  record  in  the 
same  court. 

A  motion  in  arrest  presents  only  the  sufficiency  of  the  indictment. 
State  v.  Nixon,  8  Vt.  70.  It  is  equivalent  to  a  demurrer,  and  can  be 
sustained  only  when  all  that  is  alleged  in  the  indictment  may  be  true, 
and  yet  the  person  convicted  not  have  committed  any  offense.  State  v. 
Hobbs,  39  Me.  212,  and  cases  cited.  And,  even  for  defects  which 
would  be  fatal  to  an  indictment  upon  demurrer,  if  they  are  such  as  are 
aided  by  a  verdict,  judgment  will  not  be  arrested  after  conviction. 
Commonwealth  v.  Tuck,  20  Pick.  (Mass.)  356. 

Nor  will  judgment  be  arrested  for  anything  that  could  have  been 
pleaded  in  abatement. 

By  pleading  generally  to  the  indictment  the  defendant  admits  its 
genuineness,  and  waives  all  matters  that  should  have  been  pleaded  in 
abatement.    The  decisions  to  this  point,  both  in  England  and  in  this 


362  ARREST   OF  JUDGMENT.  (Ch.  14 

country,  are  numerous.  But  it  is  urged  that  such  cases  are  to  be  dis- 
tinguished from  the  one  at  bar,  because  here  the  defendants  deny  that 
there  is  any  indictment,  on  the  ground  that  there  was  no  legal  grand 
jury. 

The  question  here  presented  has  often  been  raised  in  this  country, 
and  it  has  uniformly  been  held  that  it  is  too  late,  after  a  verdict,  to 
object  to  the  competency  of  the  grand  jurors  by  whom  the  indict- 
ment was  found,  or  to  the  mode  of  summoning  or  impaneling  them. 
All  such  objections  must  be  pleaded  in  abatement.  The  question  is 
discussed  at  length  in  the  case  of  People  v.  Robinson,  2  Parker,  Cr. 
R.  (N.  Y.)  235,  where  many  of  the  American  cases  are  collected. 
The  Attorney  General,  in  the  case  before  us,  has  cited  other  cases 
where  the  same  doctrine  is  held.  And  we  are  not  aware  of  any 
cases  where  it  has  been  called  in  question. 

The  exceptions  must  be  overruled.'^ 

TennEY,  C.  J.,  and  RiCE,  May,  GoodDnow,  and  Kent,  ]].,  con- 
curred. 


STATE  V.  HOLLEY. 

(Constitutional  Court  of  South  Carolina,  1800.     1  Brev.  35.) 

Motion  in  arrest  of  judgment.  The  prisoner  had  been  tried  and 
convicted  in  the  court  of  sessions  of  Kershaw  district,  on  an  indictment 
for  forgery.     *     *     * 

The  counsel  for  the  prisoner  urged  three  principal  grounds  of 
exception  to  the  indictment,  in  support  of  the  motion  in  arrest  of 
judgment.     *     *     * 

Thirdly.  That  the  indictment,  in  the  concluding  part  thereof, 
charges  the  offense  as  having  been  committed  against  the  form  of  the 
statute  in  such  case  made  and  provided,  etc. ;  whereas,  the  same  ought 
to  have  been  charged  as  having  been  against  the  act  of  assembly  of 
this  state,  in  such  case  made  and  provided.     *     *     * 

Trezevant,  J.*  I  am  of  opinion  that  the  judgment  ought  to  be 
arrested  in  this  case,  because  of  the  conclusion  of  the  indictment  being 
against  the  form  of  the  statute  in  such  case  made  and  provided,  and 

~  Accord :  Irregularity  in  drawing  grand  jury.  Peter  v.  State,  11  Tex. 
7G2  (1854).  Misbehavior  of  judge  in  communicating  with  the  jury.  People  v. 
Kelly,  94  N.  Y.  526  (1884).  Illegal  admission  of  evidence.  State  v.  Snow,  74 
Me.  354  (1883).  Misnomer  in  the  indictment.  State  v.  Thompson.  Cheves  (S. 
C.)  31  (1839).  Lacli  of  verification  of  Infomiation  by  oath.  State  v.  Patton, 
!>4  Mo.  App.  32,  67  S.  W.  970  (1902).  Incompetence  of  juror.  State  v.  Davis, 
126  N,  C.  1007,  35  S.  E.  464  (1900). 

"On  a  motion  in  arrest  of  judgment,  *  *  *  defects  in  the  caption,  or 
even  the  omission  of  the  caption,  cannot  be  noticed.''  Aldis,  J,,  in  State  v, 
Thibeau,  30  Vt.  104  (1858). 

s  Part  of  this  case  is  omitted. 


Ch.  14)  ARREST   OF    JUDGMENT.  363 

made  of  force  in  this  state,  instead  of  charging  the  offense  to  have  been 
committed  against  the  act  of  the  General  Assembly.  Although  the  title 
of  our  act  of  assembly  speaks  of  making  the  British  statute  of  force  in 
this  country,  yet  there  is  no  enacting  clause  for  that  purpose.  (See  P. 
L.  1-17.)  The  act  itself  creates  the  offense  in  the  language  of  the 
British  statute;  but  this  can  give  no  more  support  to  this  mode  of 
concluding  the  indictment  than  it  would  have  done  if  the  British 
statute  had  never  been  mentioned  in  the  title  of  the  act.  The  style 
of  this  act  differs  very  widely  from  that  of  the  act  by  which  most  of 
the  British  statutes  were  adopted,  and  which  are  now  of  force  in  this 
state.  This  ground  being  fatal  to  the  indictment,  it  is  unnecessary 
to  give  any  opinion  upon  the  others. 

But  the  defendant's  counsel  also  moves  to  have  him  discharged. 
In  my  opinion  he  ought  not  to  be  discharged,  but  ought  to  be  indicted 
again.  Vaux's  Case,  4  Rep.  45.  The  indictment  being  insufficient, 
his  life  was  never  in  jeopardy. 

The  judgment  was  arrested;  but  the  prisoner  was  remanded  to 
the  gaol  of  Kershaw  district,  and  ordered  to  be  indicted  again.  Be- 
fore the  next  court,  however,  he  made  his  escape,  and  left  the  state. 


LACEFIELD  v.  STATE. 

(Supreme  Court  of  Arkansas,  1879.     34  Ark.  275,  3G  Am.  Rep.  8.) 

Harrison,  J,^  *  *  *  The  record  states  that  the  arraignment 
of  the  defendant  was  waived  by  him,  but  contains  no  entry  of  a  plea 
to  the  indictment,  though  the  trial  was  had,  as  if  the  plea  of  not  guilty 
had  been  entered. 

It  was  certainly  very  irregular  to  proceed  to  trial  without  a  plea — 
there  was  no  issue  and  nothing  to  try.  It  was  an  error  for  which  the 
judgment  should  have  been  arrested.  1  Arch.  Crim.  Prac.  and  Plead. 
178-31 ;  3  Whar.  Crim.  Law,  §  3043  ;  State  v.  Fort,  1  Car.  L.  Rep. 
510  ;  Cannon  v.  State,  5  Tex.  App.  34 ;  Bush  v.  State,  5  Tex.  App.  64 ; 
State  V.  Matthews,  20  Mo.  55. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  instructions 
to  require  the  defendant  to  plead  to  the  indictment,  and  to  be  pro- 
ceeded in  according  to  law.^° 

9  Part  of  this  case  is  omitted. 

10  Accord:  Douglass  v.  State,  3  Wis.  820  (IS.IJ).  Where  indictment  charges 
no  offense  of  which  the  trial  court  has  jurisdiction  (Truitt  v.  People.  88  111- 
518  [1878]),  or  fails  to  state  the  county  in  which  the  crime  was  committed 
(Searcv  v.  State.  4  Tex.  4.')0  [1S491). 

Contra:  People  v.  Osterhaut.  .34  Hun  (N.  Y.)  2G0  (1884).  Under  statute. 
State  V.  Cas.sady,  12  Kan.  550  (1874). 


364  ARREST   OF  JUDGMENT.  (Ch,  14 

STATE  V.  RYAN. 
(Supreme  Court  of  Miuuesota,  1868.     13  Minn.  370  [Gil.  343].) 

Wilson,  C.  J.^^  *  *  *  The  jury,  after  hearing  the  evidence  and 
charge  of  the  court,  returned  this  verdict:  "We,  the  jury  in  the  case 
of  the  state  of  Minnesota  against  John  Ryan,  do  find  a  verdict  of 
murder  in  the  first  degree." 

The  defendant's  counsel  thereupon  moved  the  court  for  a  new  trial, 
and  in  arrest  of  judgment,  which  motion  was  denied,  and,  judgment 
having  been  pronounced  and  rendered  on  the  verdict,  the  defendant 
removed  the  cause  into  this  court  by  appeal.     *     *     * 

The  sixth  objection  in  the  defendant's  brief,  that  the  record  does 
not  show  that  the  officer  attending  the  jury  on  their  retirement  was 
sworn,  may  be  considered  with  his  seventh  objection,  that  record  does 
not  show  that  the  defendant  was  present  in  court  after  his  arraign- 
ment until  he  was  called  for  sentence.  It  was  on  the  trial  in  this 
court  admitted  and  stipulated  by  defendant's  counsel,  as  a  matter  of 
fact,  that  the  defendant  was  at  the  time  of  his  arraignment  and  during 
the  whole  trial,  and  at  the  rendition  of  the  verdict,  and  subsequent 
proceedings,  personally  present  in  court.  But  this  we  think  is  not 
material.  The  record  shows  that  defendant  "was  arraigned,  and 
pleaded  not  guilty  to  the  charges."  There  was  no  "case"  or  bill  of  ex- 
ceptions made,  and  therefore  we  can  only  inquire  whether  there  are 
errors  apparent  on  the  record.  It  showing  that  the  court  had  acquired 
jurisdiction,  all  acts  during  the  course  of  the  trial  are  presumed  to 
have  been  rightly  and  regularly  done,  and  its  silence,  here  complained 
of,  is  not  ground  for  reversing  the  judgment;  the  presumption  being 
that  the  court  required  the  officer  to  be  sworn,  and  the  defendant  to  be 
present  in  court,  as  the  law  requires.  If  there  was  any  error  in  fact, 
it  is  for  the  defendant  to  make  it  appear  by  a  "case"  or  bill  of  ex- 
ceptions. Stephens  v.  People,  19  N.  Y.  549 ;  jMcKinney  v.  People, 
2  Oilman  (111.)  540,  43  Am.  Dec.  65;  Pate  v.  People,  3  Oilman  (111.) 
644. 

As  to  the  defendant's  ninth  point,  that  the  jurors  were  irregularly 
summoned  after  the  regular  panel  was  exhausted,  it  does  not  appear 
from  the  record  or  otherwise  that  there  is  any  foundation,  as  a  matter 
of  fact,  for  the  objection,  and  we  therefore  do  not  consider  it. 

Judgment  affirmed. ^^ 

11  Part  of  this  case  is  omittecl. 

12  See,  also,  Ford  v.  State,  112  Ind.  373.  14  N.  E.  241  (1887). 

"It  is  settled  by  the  decisions  in  this  state  that  for  mere  defects  or  uncer- 
tainties in  criminal  pleading  a  motion  in  arrest  will  not  be  sustained,  although 
such  defects  or  uncertainties  might  be  fatal  on  a  motion  to  quash."  Monks, 
J.,  in  Campton  v.  State,  140  Ind.  444,  39  N.  E.  010  (1805). 

Statutes  exist  verv  generallv  limiting  the  scope  of  the  motion  in  arrest 
of  judgment.  See  Young  v.  People,  193  111.  236,  61  N.  E.  1104  (1901) ;  Terrell 
V.  State,  41  Tex.  464  (1874) ;  Commonwealth  v.  Brown,  1.50  Mass.  334,  23  N. 
E.  98  (1890) ;  State  v.  Goldman,  65  N.  J.  Law,  394,  47  Atl.  641  (1900). 


Ch.  14)  ARREST   OF   JUDGMENT.  3G5 

STATE  V.  LOHiMDN. 
(Court  of  Appeals  of  South  Carolina,  183G.    3  Hill,  G7.) 

Before  Mr.  Justice  Bay,  at  Charleston,  October  term,  1835. 

Per  Curiam.  No  judgment  can  be  given  on  the  verdict,  for  it  does 
not  find  the  facts  charged  in  the  indictment  of  giving  and  deliver- 
ing liquor  to  a  slave  named  Sam,  the  property  of  Jacob  F.  Mintzing. 
but  merely  the  "giving  and  delivering  liquor  to  a  slave."  This  is  not 
a  conviction  of  the  offense  charged. 

Motion  in  arrest  of  judgment  granted.^' 


REX  v.  ROBINSON. 

(Court  of  King's  Bench,  1759.     2  Burr.  799.) 

This  was  a  motion  in  arrest  of  judgment,  upon  an  indictment 
against  the  defendant  for  refusing  to  obey  an  order  of  the  general 
quarter  sessions  for  the  county  of  Stafford,  made  upon  him  for  his 
keeping  and  maintaining  James  and  Peter  Robinson,  his  two  infant 
grandchildren.     *     *     ''- 

The  indictment  was  found  at  a  quarter  sessions  holden  the  12th  of 
July,  31  Geo.  II.  The  defendant  had  been  convicted  upon  it;  and 
juQgment  signed  as  post.  pa.  801. 

On  Monday,  5th  February,  1759,  Mr.  Morton  moved  in  arrest  of 
judgment.     *     *     * 

But  it  being  litigated  by  the  other  side,  previously  to  their  showing 
cause,  "Whether  the  motion  in  arrest  of  judgment  was  made  within 
time ;" 

The  secondary  certified   (on  Thursday  the  3d  of  May  last).     And 

The  Court  then  held  (notwithstanding  the  case  in  1  Salk.  78,  The 
Queen  v.  Darby,  which  seems  contrary),  "That  a  motion  in  arrest  of 
judgment  may  be  made  (on  the  crown  side)  at  any  time  before 
sentence  pronounced."  For  that  the  judgment  signed  in  the  office  is 
only  an  interlocutory  judgment ;  and  the  award  "quod  capiatur"  is 
only  to  bring  the  defendant  in,  to  receive  the  final  judgment  or  sentence 
of  the  court;   but  is  not  the  final  judgment  itself.     *    *     *  i* 

13  Accord:  Manifjanlt  v.  State,  53  Ga.  113  (1874).  See.  also,  Slauehter  v. 
State,  24  Tex.  410  (1S59) ;  State  v.  McCormick,  84  Me.  5G6,  24  Atl.  938  (1892). 
Cf.  State  V.  Snow,  74  Me.  354  (1883). 

1*  Part  of  this  case  is  omitted. 


3G6  JUDGMEMT,  SENTENCE   AND   EXECUTION.  (Ch.  15 

CHAPTER  XV 
JUDGMENT,  SENTENCE,  AND  EXECUTION 


If  the  defendant  be  in  custody,  or  the  crime  be  capital,  he  will 
of  course  be  remanded  to  prison  in  the  interval  between  conviction 
and  sentence,  if  any  be  allowed  to  transpire.  But  if  the  cause  of  prose- 
cution be  a  mere  misdemeanor,  and  he  be  found  guilty  in  his  absence, 
*  *  *  a  capias  is  awarded  and  issued  to  bring  him  in  to  receive 
his  judgment,  and  if  he  absconds  he  may  be  prosecuted,  even  to  out- 
lawry. In  case  of  a  conviction  for  a  misdemeanor,  if  the  defendant 
be  present,  he  will  of  course  be  committed  during  the  interval,  unless 
the  prosecutor  will  consent  to  his  liberation  on  his  recognizance  to  ap- 
pear and  receive  judgment. 

1  Chit.  Cr.  Law,  664. 

The  sentence  in  capital  cases  is  usually  given  immediately  after  con- 
viction, but  the  court  may  adjourn  to  another  day  and  then  give  judg- 
ment. 

Id.  699. 


McCUE  v.  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1S75.     78  Pa.  185,  21  Am.  Rep.  7.) 

Error  to  the  court  of  oyer  and  terminer  of  Lycoming  county ;  of 
January  term,  1875,  No.  51. 

On  the  25th  of  November,  1874,  a  true  bill  was  found  against 
Barney  McCue,  for  the  murder  of  John  Dieter.  On  the  27th  of  No- 
vember the  defendant,  being  arraigned,  pleaded  "Not  guilty,"  and  the 
same  day  the  trial  commenced,  before  Gamble,  P.  J.,  and  his  associates, 
judges  of  the  court  of  oyer  and  terminer  of  Lycoming  county.    *    *    * 

On  the  1st  of  December  the  jury  found  the  defendant  "guilty  of 
murder  in  the  first  degree." 

The  record  then  has  this  entry: 

"And  now,  December  6,  1874,  prisoner,  Barney  AlcCue,  brought  in- 
to open  court,  and  the  sentence  of  the  court  is :  That  you,  Barney 
McCue,  prisoner  at  the  bar,  be  taken  from  hence  to  the  jail  of  the 
county  of  Lycoming,  from  whence  you  came,  and  from  thence  to  the 
place  of  execution  within  the  walls  of  said  jail,  and  that  you  be  there 
hanged."     *     *     * 

Chief  Justice  Agnew  delivered  the  opinion  of  the  court.^     *     *     * 

But  there  is  one  error  for  which  the  sentence  of  the  court  must  be 
reversed.     It  does  not  appear  from  the  record  that  the  prisoner  was 

1  Part  of  this  case  is  omitted. 


Ch.  15)  JUDGMENT,  SENTENCE   AND    EXECUTION.  3G7 

asked,  before  sentence,  why  sentence  of  death  should  not  be  pro- 
nounced upon  him.  This  is  a  fatal  error,  and  affects  the  merits  of 
the  case.  It  is  necessary  to  ask  the  prisoner  this,  that  he  may  have  an 
opportunity,  before  the  penalty  of  death  be  visited  upon  him,  to  plead 
in  bar  of  the  sentence  any  matter  sufficient  to  prevent  its  execution. 
He  may  have  found  out  some  good  reason  why  the  trial  was  not  legal, 
or  he  may  plead  a  pardon,  or  supervening  insanity.  The  question, 
and  the  answer  that  he  hath  nothing  to  say  other  than  that  which  he 
hath  before  said,  or  this  in  substance,  must  appear  in  the  record  before 
the  sentence  can  be  pronounced.  Prine  v.  Commonwealth,  18  Pa.  10-1 ; 
Dougherty  v.  Commonwealth,  69  Pa.  291.  In  this  case  the  question 
may  have  been  asked  in  fact ;  but,  as  it  does  not  appear  in  the  record, 
and  is  a  matter  of  substance,  we  must  treat  it  as  not  having  been  done. 
In  all  high  felonies,  and  especially  in  cases  of  murder,  the  presiding 
judge  should  see  that  the  record  is  made  up  properly,  before  the  term 
is  over. 

The  sentence  will  be  reversed,  in  order  that  the  case  may  be  sent 
back,  and  an  opportunity  afforded  to  the  prisoner  to  plead  in  bar  of 
it ;  but  this  error  will  not  reverse  the  trial  and  conviction.  Jewell  v. 
Commonwealth,  22  Pa.  94,  102.    *    *    *  2 


REX  V.  CATTERALL. 

(Court  of  King's  Bench,  1731.     Fitzgibbons,  2G6.) 

Upon  the  Return  of  a  Habeas  Corpus,  the  Commitment  was  by 
Justices  of  the  Peace  (authorized  for  that  Purpose  by  Act  of  Parlia- 
ment) for  refusing  to  account  for  a  Toll  by  him  received,  and  until  he 
do  account,  and  pay  what  shall  be  due  to  the  Proprietors  of  the  said 
Toll:  Et  Per  Cur',  The  Commitment  is  illegal,  for  no  certain  Sum 
is  thereby  appointed  to  be  paid,  and  then  the  Defendant  may  remain  in 
Prison  for  Life:  It  was  then  moved  to  amend  the  Commitment:  Sed 
Per  Cur',  That  cannot  be  after  the  Return  filed;  and  the  Defendant 
was  discharged.^ 

2  Accord:  In  treason.  Rex  v.  Speke,  3  Salk.  Sr.S  (1001).  In  capital  cases, 
generally.  State  v.  Ikenor,  107  La.  480,  :^2  Soutli.  74  (1002);  Territory  v. 
Herrera,  11  N.  M.  120,  OG  Pac.  523  (1001);  Ball  v.  U.  S..  140  U.  S.  US.  11 
Sup.  Ct.  761,  35  L.  Ed.  377  (1801).  Contra:  Gannon  v.  People.  127  111.  ..07. 
21  N.  E.  525,  11  Am.  St.  Rep.  147  (1880) ;  Warner  v.  State.  5(5  X.  J.  Law,  OSti. 
20  Atl.  505,  44  Am.  St.  Rep.  415  (1894).  In  some  jurisdictions  the  allocntns 
is  necessary,  even  in  felonies  less  than  capital.  Crocker  v.  State.  47  Ala.  53 
(1872) ;  People  v.  Jung,  70  Cal.  460,  11  Pac.  755  (1SS6). 

3  Compare  Brownbridge  v.  People,  38  Mich.  751  (1S7S) ;  People  v.  Degueu, 
54  Barb.  (N.  Y.)  105  (1860) ;  People  v.  Hughes,  29  Cal.  257  (ISOu). 


368  JUDGMENT,  SENTENCE   AND    EXECUTION.  (Ch.  15 

DRIGGERS  V.  STATE. 

(Supreme  Court  of  Alabama,  1899.    123  Ala.  4G,  26  South.  512.) 

Ed  Driggers  was  convicted  of  carrying  concealed  weapons,  and  ap- 
peals.    *     *     * 

The  judgment  entry,  after  reciting  that  the  defendant  pleaded  not 
guilty,  and  the  return  of  a  verdict  by  the  jury  of  guilty  as  charged  in 
the  indictment,  in  which  there  was  assessed  a  fine  of  $100,  then  recites : 
"And  the  defendant  not  paying  the  fine  and  costs  in  this  case,  or  con- 
fessing judgment  for  the  same,  it  is  ordered  by  the  court  that  in  lieu 
of  the  fine  not  being  paid,  that  the  defendant,  Ed  Driggers,  be  taken 
from  the  bar  of  this  court  to  the  county  jail  of  Wilcox  county,  there  to 
be  detained  by  the  sheriff  of  Wilcox  county,  in  his  custody,  until 
called  for  by  the  person  having  charge  of  the  Wilcox  county  convicts 
sentenced  to  hard  labor ;  and  that  he  perform  hard  labor  for  Wilcox 
county  for  and  during  the  period  of  thirty  days,  as  a  punishment  of 
this  offense,"  etc. 

Tyson,  J.*  The  judgment  entry  in  all  criminal  cases  where  there 
is  conviction  should  recite  in  express  words  that  the  defendant  is 
adjudged  guilty  by  the  court  as  found  by  the  jury.  There  should 
always  be  the  judgment  of  the  court  upon  his  guilt.  In  many  cases 
the  judgment  entries  in  this  respect  are  faulty,  and  more  attention 
should  be  paid  by  the  clerks  and  judges  of  nisi  prius  courts  to  this  im- 
portant feature.  The  essential  requisites  which  such  judgment  en- 
tries should  contain  have  been  so  often  pointed  out  and  suggested  by 
this  court  that  it  would  seem  that  every  clerk  and  judge  yin  the  state 
would  know  what  they  are.  And  it  would  seem  that  a  compliance  with 
these  suggestions  is  a  matter  so  simple  that  all  errors  in  this  respect 
could  easily  be  avoided.  Besides,  it  is  a  matter  of  too  much  im- 
portance, and  a  duty  too  clearly  imposed  by  law,  that  the  mistake 
should  so  frequently  occur.  It  can  be  accounted  for  upon  no  other 
theory  than  that  the  clerk  who  whites  the  minute  entry  is  either  in- 
competent or  very  careless  in  the  discharge  of  his  duties,  and  the  pre- 
siding judge  fails  to  read  or  have  the  minutes  read  as  he  is  required 
by  the  statute  to  do.  In  the  case  before  us  the  language  employed  in 
the  minute  entry  is  barely  sufficient  to  uphold  the  conviction,  but  under 
the  liberal  construction  given  to  words  of  similar  import  in  the  case  of 
Wilkinson  v.  State,  106  Ala.  28,  17  South.  458,  we  hold  that  enough 
is  expressed  to  show  that  the  judgment  of  the  court  was  invoked  and 
pronounced  upon  the  guilt  of  the  defendant.     *     *     * 

*  Part  of  the  case  only  is  reprinted. 


Ch.  16)  JUDGMENT,  SENTENCE    AND    EXECUTION.  369 

WILSON  V.  STATE. 

(Supreme  Court  of  Indiana,  18G7.     28  Ind.  393.) 

FrazEr,  C.  J.  Indictment  for  grand  larceny.  Verdict  guilty,  assign- 
ing the  punishment  at  two  years  m  the  state  prison,  a  fine  of  one  dollar, 
and  that  the  defendant  be  disfranchised  for  the  term  of  five  years. 
Judgment,  two  years  in  the  state  prison  at  hard  labor,  fine  one  dollar, 
and  that  the  defendant  be  disfranchised  and  rendered  incapable  of 
holding  any  office  of  trust  or  profit  for  five  years.  There  is  no  argu- 
ment for  the  state. 

The  judgment  as  to  hard  labor  is  not  objectionable,  though  it  was 
unnecessary.  It  is  by  law  the  fate  of  all  who  are  imprisoned  in  the 
penitentiaries,  and  a  judgment  to  that  effect  certainly  can  do  no  harm. 
1  Gav.  &  H.  Rev.  St.  18T0,  p.  468,  §  15.  But  there  was  no  verdict 
authorizing  a  judgment  rendering  the  prisoner  incapable  of  holding 
office.  The  jury  must  assess  the  punishment,  and  the  judgment  must 
be  according  to  the  verdict.  2  Gav.  &  H.  Rev.  St.  1870,  p.  419,  §§ 
116,  117.  The  verdict  itself  was  defective  in  not  assessing  a  penalty 
of  the  sort,  and  the  jury  should  have  been,  on  that  account,  sent  back 
for  further  deliberation,  that  they  might  have  corrected  it.  Id.  p.  442, 
§  19. 

There  was  a  serious  defect  in  the  evidence.  The  property  was  laid 
to  be  in  Lewis  Vance  and  Henry  H.  Armstrong.  The  whole  proof  of 
that  averment  was  that  it  was  part  of  the  rigging  of  the  steamer  Jacob 
Strader,  owned  by  R.  &  E.  Neal,  and  that  Vance  and  Armstrong  had 
said  to  the  owners  that  they  would  see  that  the  boat  "was  taken  care 
of  while  there,  and  did  so." 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial. "* 


KIDD  v.  TERRITORY. 
{Supreme  Court  of  Oklahoma,  1900.  9  Okl.  450.  60  rac.  114.) 
Irwin,  J.®  In  this  case  there  are  19  assignments  of  error,  but  w'C 
think  it  only  necessary  to  refer  to  one.  That  is  the  error  assigned  that 
the  court,  in  pronouncing  sentence,  found  the  defendant  guilty  of  a  dif- 
ferent and  higher  degree  of  offense  than  that  authorized  by  the  verdict 
of  the  jury.  A  reference  to  the  verdict  of  the  jury  will  be  found  in  the 
record.  The  verdict  reads  as  follows:  "We,  the  jury  duly  selected, 
impaneled,  and  sworn  in  the  above-entitled  cause,  find  the  defendant 
guilty  of  assault  and  battery.     F.  L.  Boling,  Foreman." 

B  Accord:  Rivers  v.  State,  10  Tex.  App.  177  (ISSl).  Where  the  court  im- 
posed a  liRhter  sentence  than  that  fixed  by  the  verdict.  Cole  v.  People,  84 
111.  216  (1876). 

6  Part  of  this  case  is  omitted. 
Mik.Cb.Pk.— ^ 


370  JUDGMENT,  SENTENCE   AND   EXECUTION.  (Gh.  15 

A  reference  to  the  sentence  of  the  court  will  show  the  following: 
"October  33,  1898.  13th  Judicial  Day.  Criminal  Cause  #711.  Ter- 
ritory of  Oklahoma  v.  James  W.  Kidd.  Judgment  and  Sentence. 
Comes  now  defendant  into  open  court  for  judgment  and  sentence  on 
the  verdict  of  guilty  heretofore  rendered  in  said  cause;  and  now, 
defendant  giving  no  good  reason  why  the  judgment  and  sentence  of 
the  court  should  not  at  this  time  be  pronounced  upon  him,  on  the  ver- 
dict herein,  the  court  finds  that  the  said  defendant  is,  on  the  verdict 
herein,  guilty  of  assault  with  intent  to  kill.  It  is  therefore  considered, 
ordered,  and  adjudged  that  the  defendant,  James  W.  Kidd,  be,  and 
hereby  is,  fined  in  the  sum  of  one  hundred  ($100.00)  dollars,  and  the 

costs  of  this  action,  taxed  at  $ ,  and  that  he  be  imprisoned  in  the 

county  jail  for  a  period  of  thirty  days.  And  now  the  court  informs 
defendant  of  his  right  of  appeal,  and  bail  pending  said  appeal  is  fixed 
at  $500,  and  ten  days  given  to  take  appeal,  60  days  to  prepare  and 
serve  case-made,  ten  days  to  suggest  amendments  thereto,  to  be  signed 
and  settled  on  five  days'  notice.  To  the  rendition  of  which  said  judg- 
ment and  sentence  the  defendant  excepts  at  the  time." 

By  this  record  it  clearly  appears  that  while  the  jury  have  found 
the  defendant  guilty  of  simple  assault  and  battery,  which  under  our 
statute  is  a  misdemeanor,  the  court  has  found  the  defendant  guilty 
of  a  felony,  to  wit,  an  assault  with  intent  to  kill,  which,  we  have  no 
doubt,  is  clearly  reversible  error.  While  the  punishment  inflicted  is  the 
maximum  punishment  for  assault  and  battery,  it  is  also  the  minimum 
punishment  for  the  crime  of  assault  with  intent  to  kill,  as  provided  by 
our  statute.  Now,  it  seems  to  us  that  the  law  never  intended  that 
the  court  should  pass  sentence  and  judgment  upon  a  defendant,  find- 
ing him  guilty  of  a  greater  or  more  serious  offense  than  that  of  which 
the  jury  by  their  verdict  had  convicted  him.  In  this  case,  if  allowed 
to  stand,  the  record  would  show  that  the  jury  had  found  the  defends 
ant  guilty  of  a  misdemeanor,  and  the  court,  passing  sentence  upon  that 
verdict,  had  increased  the  degree  of  the  offense  to  make  it  a  felony. 

This  we  think  is  error,  for  which  the  judgment  is  reversed,  and  the 
cause  remanded  for  sentence  in  accordance  with  the  verdict  of  the 
jury,  and  costs  assessed  to  Kingfisher  county.  All  of  the  justices  con- 
curring. 


COMMONWEALTH  v.  FOSTER. 

(Supreme  Judicial  Court  of  Massachusetts,  Suffolk,  1877.     122  Mass.  317,  23 

Am.  Rep.  32G.) 

Gray,  C.  J.'^  *  *  *  By  our  law,  several  offenses  of  the  same 
general  nature,  and  punishable  in  the  same  manner,  may  be  joined  in 
one  indictment;  and,  in  case  of  a  general  verdict  of  guilty  upon  all 
the  counts,  the  sentence  may  be  either  entire  upon  the  whole  indict- 

T  Part  of  this  case  is  omitted. 


Ch.  15)  JUDGMENT,  SENTENCE   AND    EXECUTION.  371 

ment,  or  distinct  upon  each  count,  and  to  take  effect  upon  the  ex- 
piration of  a  previous  sentence,  and  a  defect  in  one  count  does  not 
invalidate  the  sentence  upon  the  others.  Josslyn  v.  Commonwealth, 
C  Mete.  236;  Kite  v.  Commonwealth,  11  Mete.  581;  Commonwealth 
V.  Costello,  120  Mass.  358;    Commonwealth  v.  Brown,  121  Mass.  69. 

This  case  presents  the  question  whether  a  defendant,  who  has  been 
found  guilty  generally  upon  an  indictment  containing  several  counts 
for  distinct  offenses,  and  has  been  sentenced  on  some  of  the  counts 
to  imprisonment,  and  has  been  imprisoned  under  such  sentence,  can 
at  a  subsequent  term  be  brought  up  and  sentenced  anew  upon  another 
count  in  the  same  indictment.    *     *    * 

By  the  law  of  England  and  of  this  commonwealth,  when  a  verdict 
of  guilty  has  been  returned  upon  one  count  of  an  indictment,  the  de- 
fendant may  be  lawfully  sentenced  thereon,  although  no  verdict  has 
been  returned  upon  another  count.  Latham  v.  The  Queen,  5  Best  & 
S.  635,  9  Cox,  Cr.  Cas.  oKi;  Edgerton  v.  Commonwealth,  5  Allen,  514. 
In  Latham  v.  The  Queen  it  was  indeed  said  that  the  counts  were  to  all 
intents  and  purposes  separate  indictments,  and  the  defendant  might 
afterwards  be  tried  on  the  second  count ;  but  this  point  was  not  be- 
fore the  court.  On  the  other  hand,  in  Edgerton  v.  Commonwealth, 
this  court  was  of  opinion  that  there  could  be  only  one  judgment  upon 
the  indictment,  and  that  consequently  a  judgment  and  sentence  upon 
one  count  definitively  and  conclusively  disposed  of  the  wdiole  indict- 
ment, and  operated  as  an  acquittal  upon,  or  discontinuance  of,  the 
other  count.  And  the  same  view  has  been  affirmed  by  decisions  in 
other  states.  Guenther  v.  People,  24  N.  Y.  100;  Girts  v.  Common- 
wealth, 22  Pa.  351 ;  Weinzorpflin  v.  State,  7  Blackf.  (Ind.)  186 ;  Stoltz 
v.  People,  4  Scam.  (111.)  168;  State  v.  Hill,  30  Wis.  416;  Kirk  v. 
Commonwealth,  9  Leigh  (Va.)  627;  Nabors  v.  State,  6  Ala.  200; 
^vlorris  v.  State,  8  Smedes  &  M.  (Miss.)  762. 

We  have  no  doubt  that  this  is  the  true  view,  and  that  the  same  prin- 
ciple applies  to  a  case  in  which  a  verdict  of  guilty  is  returned  upon  all 
the  counts,  and  sentence  is  passed  upon  some  of  them — especially 
where,  as  in  the  present  case,  all  the  counts  are  against  the  same  per- 
son, and  no  special  order  is  made,  at  the  term  at  which  the  judgment 
is  rendered,  continuing  the  case  for  further  proceedings.  The  sen- 
tence upon  the  first  two  counts,  though  erroneous  and  liable  to  be  re- 
versed by  writ  of  error,  yet,  having  been  rendered  by  a  court  which 
had  jurisdiction  of  the  party  and  of  the  offense,  on  a  verdict  returned 
in  due  form,  was  not  absolutely  void.  Commonwealth  v.  Loud,  3 
Mete.  328,  37  Am.  Dec.  139;  Kite  v.  Commonwealth,  11  Mete.  581, 
585;  Ex  parte  Lange,  18  Wall.  163,  174,  21  L.  Ed.  872.  The  sen- 
tence might  have  been  amended  at  the  same  term,  and  before  any  act 
had  been  done  in  execution  thereof.  Common\vealth  v,  Weymouth.  2 
Allen,  144,  79  Am,  Dec.  776, «     But  after  the  defendant  had  been  im- 

8  See  Price  v.  Coramouwealtb,  33  Grat.  (Va.)  819,  3G  Am.  Rep.  797  (18S0). 


372  JUDGMENT,  SENTENCE   AND    EXECUTION.  (Cll.  15 

prisoned  under  it,  and  the  term  had  been  adjourned  without  day,  the 
court  could  not  amend  it,  or  set  it  aside  and  impose  a  new  sentence  in- 
stead. Rex  V,  Fletcher,  Russ.  &  R.  58;  Brown  v.  Rice,  57  Me.  55, 
2  Am.  Rep.  11 ;  Commonwealth  v.  Mayloy,  57  Pa.  291 ;  Ex  parte 
Lange,  above  cited.  This  is  not  like  a  case  in  which  the  indictment 
has  been  ordered  by  the  court  to  be  laid  on  file,  without  any  judgment 
against  the  defendant,  as  in  Commonwealth  v.  Dowdican's  Bail,  115 
Mass.  133. 

The  result  is  that  it  was  not  in  the  power  of  the  superior  court, 
ifter  having  rendered  one  judgment  and  sentence  against  the  defend- 
ant, upon  which  he  had  been  since  imprisoned,  to  order  at  a  subse- 
quent term  that  the  case  should  be  brought  forward  and  another  sen- 
tence imposed. 

Exceptions  sustained.® 


BURRELL  V.  STATE. 
(Supreme  Court  of  Nebraska,  1SS9.    25  Xeb.  581,  41  N.  W.  390.) 

Cobb,  J.^"  *  *  *  The  jury  found  the  defendant  guilty  on  16  of 
the  17  counts  of  the  indictment,  one  of  which  was  for  selling  to  a 
minor,  for  which  the  law  fixes  the  punishment  at  a  fine  of  $25.  The 
sentence  should  have  been  upon  the  theory  that  the  verdict  is  sustained 

9  See  also  People  v.  Meservey,  76  Mich.  223,  42  N.  W.  1133  (1SS9) ;  Common- 
wealth V.  Mayloy,  57  Pa.  291  (1868) ;  State  v.  Cannon,  11  Or.  312,  2  Pac.  191 
(18S4). 

"Objection  is  also  made  to  the  action  of  the  judge  in  amending  the  entry 
of  the  judgment  a  month  after  it  was  made.  But.  if  this  was  necessary  to 
make  the  record  correspond  to  the  fact,  there  was  certainly  no  want  of  power. 
It  seems  that  the  entry  as  made  failed  to  show  that  the  verdict  was  one  of 
murder  in  the  first  degree,  and  also  gave  the  sentence  incorrectly.  This  mis- 
prision of  the  clerk  it  was  entirely  proper  to  correct,  and  there  was  nothing 
in  the  lapse  of  time  which  could  constitute  an  impediment."  Cooley,  J.,  in 
People  V.  Bemis,  51  Mich.  42G.  16  N.  W.  794  (1883). 

"Where  a  prisoner  is  under  sentence  for  one  crime,  it  is  no  bar  to  his  trial, 
conviction,  and  sentence  for  another  and  higher  grade  of  crime,  committed 
while  he  is  imdergoing  imprisonment  for  the  first.  This  was  always  the  doc- 
trine under  the  common  law.  While  the  courts  held  that  the  plea  autrefoit 
attaint,  or  a  former  attainder,  was  a  good  plea  in  bar.  whether  it  was  for  the 
same  or  any  other  felony,  yet  there  were  certain  well-recognized  and  estab- 
lished exceptions  to  the  rule,  among  which  were  that  an  attainder  in  felony 
was  no  bar  to  an  indictment  for  treason,  because  the  judgment  and  manner 
of  death  was  different  and  the  forfeiture  was  more  extensive.  Another  ex- 
ception which  obtained  was  that  where  a  person  attainted  of  any  felony  was 
afterward  indicted  as  principal  in  another,  in  which  thex-e  were  also  acces- 
sories prosecuted  at  the  same  time.  In  that  case  it  was  held  that  the  plea  of 
autrefoit  attaint  was  no  bar,  but  that  he  should  be  compelled  to  take  his  trial 
for  the  sake  of  public  justice,  because  the  accessories  to  such  second  felony 
could  not  be  convicted  until  after  the  conviction  of  the  principal.  Hence  fol- 
lowed the  rule  that  a  plea  of  autrefoit  attaint  was  never  good  but  when  a 
second  trial  would  be  superfluous.  4  Sharsw.  Blackst.  336."  Wagner,  J.,  in 
State  V.  Conuell,  49  Mo.  289  (1872). 

10  Part  of  the  opinion  only  is  reprinted. 


Ch.  15)  JUDGMENT,  SENTENCE    AND   EXECUTION.  373 

by  the  evidence ;  that  the  defendant  pay  a  fine  of  so  much  for  the  of- 
fense for  which  he  stands  convicted  upon  the  first  count  of  the  indict- 
ment, and  so  on ;  but,  instead  thereof,  there  is  one  solid  fine  assessed 
against  the  defendant,  for  the  sum  of  $1,525. 

We  have  seen  that  there  is  no  evidence  to  sustain  the  judgment  as 
to  four  of  the  counts.  Had  a  separate  fine  been  assessed  as  to  each 
count  upon  which  there  was  a  finding  by  the  jury,  only  those  upon 
the  counts  where  the  finding  is  unsustained  by  evidence  would  be  re- 
versed; but,  as  the  fine  and  judgment  are  in  solido,  it  must  be  said 
that  the  judgment  is  unsustained  by  the  evidence,  and  it  must  be  re- 
versed. 

The  judgment  of  the  district  court  is  reversed,  and  the  cause  re- 
manded for  further  proceedings.    The  other  judges  concur." 


Ex  parte  BURDEN. 

(Supreme  Court  of  Mississippi,  1907.     92  Miss.  14,  45  Soutli.  1,  131  Am.  St. 

Rep.  511.) 

Whitfield,  C.  J.^^  ^i^^  verdict  in  this  case  was  in  the  follow- 
ing words:  "We,  the  jury,  find  the  defendant  guilty  of  assault  and 
battery  with  intent  to  commit  manslaughter."  Under  the  case  of 
Traube  v.  State,  56  Miss.  153,  this  has  been  determined  to  be  a  mere 
conviction  of  assault  and  battery;  the  words  "with  intent  to  commit 
manslaughter"  being  mere  surplusage.  We  have,  therefore,  a  con- 
viction for  a  misdemeanor.  The  learned  circuit  judge,  misinterpreting 
this  verdict,  held  it  to  be  a  conviction  for  a  felony,  and  sentenced  the 
defendant  to  six  years  in  the  penitentiary.  This  sentence  he  had  no 
power  or  jurisdiction  to  impose.  The  distinction,  abundantly  estab- 
lished by  authority,  is  between  a  sentence  which  is  merely  excessive 
or  erroneous,  regard  being  had  to  the  particular  oflfense,  and  a  sen- 
tence which  is  absolutely  void.  In  the  former  case  the  writ  of  habeas 
corpus  cannot  be  availed  of,  but  the  party  must  appeal ;  else  the  writ 
of  habeas  corpus  would  be  made  to  serve  the  office  intended  exclusive- 
ly for  an  appeal.    *    *    * 

In  the  case  of  a  judgment  or  sentence  which  is  merelv  excessive,  it 
seems  to  be  well  settled  that,  "if  the  court  was  one  of  general  juris- 
diction, such  judgment  or  sentence  is  not  void  ab  initio  because  of  the 
excess,  but  that  it  is  good  so  far  as  the  power  of  the  court  extend.-, 
and  is  invalid  only  as  to  the  excess,  and  therefore  that  a  person  in  cus- 
tody under  such  a  sentence  cannot  be  discharged  on  habeas  corpus 
until  he  has  suffered  or  performed  so  much  of  it  as  it  was  within  the 

11  Cf.  Stephens  v.  State,  53  N.  J.  Law,  245,  21  Ati.  1038  (1S91) ;  LeCforpe  v. 
State,  129  Iiid.  551,  29  N.  E.  34  (1891) ;  People  v.  Carter,  48  Huu  (N.  Y.)  1«> 
(1888). 

12  Part  of  this  case  Is  omitted. 


374  JUDGMENT,  SENTENCE    AND    EXECUTION.  (Ch.  15 

power  of  the  court  to  impose.  This  condition  exists  whenever  the 
punishment  imposed  is  of  the  nature  or  kind  prescribed  by  law  and 
merely  exceeds  the  quantity  authorized,  as  where  the  offender  is  sen- 
tenced to  a  longer  term  of  imprisonment  than  is  prescribed  for  the 
particular  offense,"  etc.  It  will  be  especially  noted  that  both  Cyc.  and 
A.  &  E.  Ency.  of  Law  declare  it  to  be  the  modern  rule,  according  to 
the  latest  and  best-considered  cases,  that,  although  the  court  may  have 
jurisdiction  over  the  subject-matter  and  over  the  person,  it  is  with- 
out jurisdiction  to  impose  a  sentence  not  appropriate  to  the  kind  and 
nature  of  the  offense.     *     *     * 

Wherever  the  sentence  pronounced  by  the  circuit  judge  is  merely 
excessive,  or  erroneous,  or  irregular,  the  writ  of  habeas  corpus  has 
no  place,  but  the  defendant  must  appeal ;  but  wherever  the  sentence 
imposed  by  the  circuit  judge  for  the  particular  offense  of  which  the 
defendant  has  been  found  guilty  by  the  jury  is  void  for  want  of  power 
to  pronounce  that  particular  sentence,  such  sentence  is  absolutely  void, 
and  the  defendant  may  resort  to  the  writ  of  habeas  corpus  to  release 
him  from  confinement  in  pursuance  of  such  illegal  sentence. 

Here  we  have  the  case  of  a  man  convicted  of  a  misdemeanor  and 
jnder  sentence  as  for  a  felony.  Most  manifestly  the  sentence  is  void 
absolutely,  as  one  which  the  court  was  without  power  under  the  law 
to  pronounce  at  all.  It  is  not  correct  to  say  that,  if  the  circuit  judge 
interpreted  this  verdict  to  be  a  verdict  of  guilty  of  a  felony,  he  was 
under  the  duty  to  sentence  as  for  a  felony.  Whether  the  defendant 
was  convicted  of  a  misdemeanor  or  a  felony  as  a  matter  of  fact  is  the 
test  as  to  the  sentence  to  be  imposed ;  not  what  interpretation,  right 
or  wrong,  the  circuit  judge  may  have  put  on  the  verdict.  The  ques- 
tion is,  what  was  the  defendant  convicted  of  by  this  verdict?  and  the 
answer  is  plain,  "Of  simple  assault  and  battery,"  and  that  is  a  mere 
misdemeanor.  How,  then,  could  the  circuit  judge  impose  the  penalty 
of  six  years'  imprisonment  in  the  penitentiary  on  a  defendant  con- 
victed of  mere  assault  and  battery?  It  is  manifest  that  his  judgment 
was  absolutely  void. 

The  argument  that  habeas  corpus  does  not  lie  to  correct  a  merely 
excessive  sentence  is  sound  enough ;  but  the  sentence  must  always  be 
one  proper  for  a  misdemeanor  where  the  conviction  is  of  a  misde- 
meanor, and  one  proper  for  felony  where  the  conviction  is  of  a  felony, 
else  we  would  introduce  interminable  confusion  into  the  law.  If  in 
this  case,  for  example,  the  circuit  judge,  treating  this  judgment,  as 
he  should  have  treated  it,  as  a  conviction  of  simple  assault  and  bat- 
tery, had  imposed  an  excessive  sentence  as  for  a  misdemeanor,  we 
would  have  had  the  case  of  a  merely  excessive  or  irregular  or  erro- 
neous sentence ;  but,  when  he  undertook  to  impose  upon  the  defend- 
ant a  felony  sentence  for  a  conviction  for  misdemeanor,  it  becomes 
perfectly  clear  that  he  imposed  a  sentence  which  he  was  without  pow- 
er or  jurisdiction  to  impose.  The  one  would  have  been  a  mere  irreg- 
ular exercise  of  power;    the  other  the  exercise  of  a  power  he  was 


Ch.  15)  JUDGMENT,  SENTENCE    AND    EXECUTION.  375 

wholly  without,  since  in  no  possible  case  could  he  have  imposed  a 
felony  sentence  for  a  mere  misdemeanor. 

One  other  observation  is  due  to  be  made,  however,  in  this  case,  and 
that  is  that,  since  this  verdict  is  not  a  nullity,  but  was  a  good  verdict 
for  assault  and  battery,  the  relator  should  not  be  discharged,  but 
should  be  remanded  to  the  circuit  court  for  proper  sentence  as  for  as- 
sault and  battery.  See  21  Cyc.  p.  306,  par.  15,  where  it  is  said,  citing 
authorities:  "The  court  may  also  have  jurisdiction  to  commit  a  party 
on  one  ground,  but  not  on  another,  and  may  nevertheless  commit  him 
on  both  grounds ;  and  in  such  case  the  prisoner  ought  not  to  be  dis- 
charged so  long  as  he  is  properly  imprisoned  under  the  valid  portion 
of  the  commitment." 

The  decree  is  affirmed.^* 


FULTS  V.  STATE. 

(Supreme  Court  of  Tennessee,  1854.     2  Sneod.  232.) 

ToTTEN,  J.^*  At  January  term,  1851,  of  the  circuit  court  of  Grun- 
dy, David  Fults,  with  others,  was  convicted  of  an  affray.  He  was 
sentenced  to  a  fine  of  $10  and  two  days'  imprisonment.  The  fine  and 
costs  were  secured,  and  there  appears  of  record  the  following  entry : 

"On  motion  of  defendant,  David  Fults,  and  for  reasons  appearing 
to  the  satisfaction  of  the  court  by  admission  of  the  Attorney  General 
and  the  evidence  in  the  case,  he  is  permitted  to  enter  into  recognizance 
to  appear  at  the  next  term  of  this  court  and  then  undergo  the  impris- 
onment adjudged  against  him,  and  abide  by  and  perform  the  sentence 
of  the  court." 

The  defendant  gave  bail,  and  at  the  next  term  made  his  appearance 
before  the  court.  It  was  thereon  ordered  that  the  defendant  be  im- 
prisoned in  accordance  with  the  judgment  at  the  former  term,  and 
the  defendant  appealed  in  error  to  this  court. 

We  see  nothing  irregular  in  this  proceeding  to  which  the  defendant 
can  except.  There  are  many  cases,  no  doubt,  where  it  is  necessary, 
and  proper,  to  suspend  the  execution  of  the  final  judgment.  For  in- 
stance, where  the  prisoner  has  become  non  compos  between  the  judg- 
ment and  the  award  of  execution ;  or,  in  order  to  give  room  to  apply 
to  the  executive  for  a  reprieve  or  pardon,  or  in  special  cases,  where  the 
necessity  and  propriety  of  such  course  are  rendered  evident  to  the 
mind  of  the  court.    Allen  v.  State,  Mart.  &  Y.  297;  4  Bl.  Com.  305. 

In  Allen's  Case  it  was  considered  that  a  right  to  petition  the  ex- 
ecutive for  a  pardon  was  a  constitutional  right,  and  as  the  prisoner 
was  convicted  of  manslaughter,  and  sentenced  to  be  branded  in  the 
hand,  under  the  law  then  in  force,  time  was  allowed  him  until  the 

IS  Mayes,  J.,  dissented.  i*  Part  of  this  case  is  omitted. 


376  JUDGMENT,  SENTENCE    AND    EXECUTION.  (Cll.  15 

next  term  to  petition  for  a  pardon.  He  was  also  permitted  to  give 
bail,  the  court  remarking:  "In  common  cases,  where  the  party  can 
give  bail  reasonably,  to  secure  his  appearance,  that  he  may  be  forth- 
coming and  subject  to  the  sentence  of  the  law,  is  all  that  the  law  re- 
quires." 

Now  it  is  true  that  the  order  does  not  state  for  what  cause  the  re- 
spite was  granted.  It  were  better,  no  doubt,  that  the  cause  be  stated, 
that  it  may  appear  to  be  such  as  the  law  will  recognize.  We  are  bound, 
however,  to  presume  from  the  silence  of  the  record  in  this  respect, 
that  the  respite  was  granted  on  sufficient  cause ;  but,  if  it  were  not,  it 
is  clear  that  the  objection  is  one  not  to  be  made  by  the  defendant  who 
takes  the  benefit  of  it. 

The  judgment  will  be  affirmed.^ ° 


Ex  parte  ROHE. 
(Supreme  Coiu-t  of  Arkansas,  1843.    5  Ark.  104.) 

This  was  an  application  for  a  writ  of  habeas  corpus.  Rohe  was 
brought  before  Hon.  Thomas  S.  Reynolds,  mayor  of  Little  Rock,  on 
the  lUth  of  April,  1843,  charged  with  an  attempt  to  rescue,  from  the 
custody  of  the  city  constable,  a  person  who  was  in  his  custody.  He 
required  no  jury;  and  the  mayor,  after  hearing  evidence,  adjudged 
that  the  state  recover  of  him,  for  the  use  of  the  city,  $25  and  costs. 

On  the  same  day  he  issued  the  following  warrant,  by  virtue  of 
which  Rohe  was  confined :  "State  of  Arkansas,  County  of  Pulaski, 
City  of  Little  Rock.  To  the  Sheriff  or  Jailer  of  said  County :  You 
are  commanded  to  take  the  body  of  Frederic  Rohe,  and  safely  keep 
him  until  discharged  by  due  course  of  law."  Which  was  signed  by 
him  as  mayor.  The  writ  of  habeas  corpus  being  returned,  the  .matter 
was  argued  by  Blackburn,  for  the  petitioner. 

Paschal,  J.  The  mittimus  returned  by  the  sheriff  sets  forth  no  of- 
fense with  which  the  prisoner  is  charged,  or  of  which  he  stands  con- 
victed ;  nor  does  the  said  precept  run  in  the  name  of  the  state.  When 
a  man  is  imprisoned,  the  cause  of  his  caption  and  detention  should  be 
sent  along  with  him.  The  writ  is  wanting  in  a  constitutional  pro- 
vision necessary  to  all  writs ;  and  it  is  equally  insufficient  in  not  set- 
ting forth  the  cause  of  the  restraint  of  liberty. 

The  prisoner  must,  therefore,  be  discharged. ^^ 

15  Bnt  see  In  re  Webb,  80  Wis.  354,  62  N.  W.  177,  27  L.  R.  A.  35(5,  46  Am. 
St.  Rep.  846  (1895) ;  In  re  [Nlarknson,  5  N.  D.  180,  64  N.  W.  039  (1895). 

16  See,  also,  Kenney  v.  State,  5  R.  I.  385  (1858) ;  In  re  Thayer,  69  Vt.  314, 
37  Atl.  1042  (1897).  Cf.  People  v.  State  Reformatory,  148  111.  413,  30  N.  E. 
76,  23  L.  R.  A.  139  (1S94).  In  some  states  it  is  provided  by  statute  that  the 
warrant  of  commitment  shall  be  a  certified  copy  of  the  judgment  as  entered 
in  the  minutes  of  the  court.     See  Ex  parte  Dobson,  31  Cal.  497  (1867). 


Ch.  15)  JUDGMENT,  SENTENCE   AND   EXECUTION.  377 

STATE  V.  KITCHENS. 

(Court  of  Appeals  of  South  Carolina,  1835.    2  Hill,  G12,  27  Am.  Dec.  410.) 

The  prisoner  was  indicted  and  convicted  for  murder,  at  Fall  term, 
1834:,  and  sentence  of  death  passed  on  him.  Befor.e  the  day  of  ex- 
ecution arrived,  the  sheriff  died,  and  there  was,  on  the  day  appointed, 
no  sheriff'  to  execute  the  sentence.  At  Spring  term,  1835,  the  solicitor 
moved  the  court  (Mr.  Justice  Gantt  presiding)  to  assign  another  day 
for  execution.  The  prisoner's  counsel  showed,  for  cause  against  the 
motion,  the  sentence  had  once  been  passed,  and  that  it  had  not  been 
executed  was  not  the  fault  of  the  prisoner,  and  moved  for  his  dis- 
charge. The  court  refused  the  motion  to  discharge,  and  the  counsel 
for  the  prisoner  appealed. 

O'NeaIvL,  J.  It  seems  that  the  established  practice  in  England,  pri- 
or toi  St.  25  Geo.  II,  c.  37,  was  "for  the  judge  to  sign  the  calendar,  a 
list  of  all  the  prisoners'  names,  vi^ith  the  separate  judgments  in  the 
margin,  which  is  left  with  the  sheriff,"  and  by  it  he  does  "execution 
within  a  convenient  time."  By  St.  25  Geo.  II,  c.  37,  the  judges  are 
directed,  in  cases  of  conviction  for  murder,  to  pronounce  sentence  in 
open  court,  and  the  statute  fixes  the  time  of  execution.  In  this  state, 
the  practice  has  been  to  sentence  the  prisoner  in  open  court,  and  as- 
sign a  day  for  his  execution.  In  the  case  of  State  v.  Smith,  1  Bailey. 
283,  19  Am.  Dec.  679,  the  prisoner  received  a  conditional  pardon,  and 
was  discharged  from  prison ;  but,  having  afterwards  violated  the  con- 
dition, he  was  held  to  be  liable  to  execution  under  the  conviction  and 
judgment.  So  in  Addington's  Case,  2  Bailey,  516,  23  Am.  Dec.  150. 
the  prisoner,  who  had  violated  the  condition  of  his  pardon,  and  in  the 
meantime  the  statute  under  which  he  had  been  convicted  was  repealed, 
was  held  to  be  liable  to  execution.  In  Duestoe's  Case,  1  Bay,  377,  the 
prisoner  escaped  between  judgment  and  the  day  of  execution,  and 
after  some  years  was  taken,  another  day  was  assigned  for  his  execu- 
tion, and  he  was  executed.  In  Loyd's  Case,  the  prisoner  was  not 
executed  on  the  day  assigned  for  execution,  owing  to  the  new  ar- 
rangement of  the  circuit  court  districts  under  the  act  of  1800.  H-^. 
was  held  by  the  Constitutional  Court  not  to  be  entitled  to  his  discharge, 
a  day  was  assigned,  and  he  was  executed. 

These  precedents  would  be  enough  to  dispose  of  the  prisoner's  mo- 
tion, but  the  case  does  not  depend  alone  on  them.  The  same  conclu- 
sion must  have  been  arrived  at  if  there  had  been  no  decision  on  the 
subject  in  the  state.  "In  the  Case  of  the  Earl  of  Ferrers,  it  was  re- 
solved by  all  the  judges  that  if  a  peer  be  convicted  of  murder  before 
the  lords  in  parliament,  and  the  day  appointed  by  them  for  execu- 
tion pursuant  to  25  Geo.  II  should  lapse  before  such  execution  done, 
a  new  time  may  be  appointed  for  the  execution."  Hawk.  P.  C.  bk.  2. 
c.  51,  §  1;    Fost.  140.     That  case  is  perfectly  parallel  with  this,  for 


378  JUDGMENT,  SENTENCE   AND   EXECUTION.  (Ch.  15 

in  both  the  day  of  execution  is  part  of  the  sentence,  and  in  both  the 
execution  was  not  stayed  by  any  act  of  the  prisoner. 

But,  independent  of  cases,  the  clear  and  well-settled  principle  that 
the  judgment  is  not  executed  'till  the  prisoner  be  hanged  until  he  be 
dead  is  enough  to  authorize  the  court  to  assign  a  new  day.  The  judg- 
ment stands  in  full  force  until  the  prisoner  be  executed  or  pardoned; 
For  Hawkins,  bk.  2,  c.  51,  §  7,  says:  "It  is  clear,  that  if  a  man  con- 
demned to  be  hanged,  come  to  life  after  he  be  hanged,  he  ought  to  be 
hanged  again,  for  the  judgment  is  not  executed  till  he  be  dead."  This 
shows  that  the  judgment  can  only  be  satisfied  by  an  actual  execution, 
and  if  the  execution  attempted  is  prevented  by  accident  from  being 
effectual,  that  still  the  judgment  of  the  law  remains  and  must  be  ex- 
ecuted. 

The  motion  is  dismissed. 

Johnson  and  Harper,  JJ.,  concurred. 


Ch.  16)  APPEAL,  WRIT   OF    ERROR,  AND   CERTIORARI.  379 

CHAPTER  XVI 
APPEAL,  WRIT  OF  ERROR,  AND  CERTIORARI 


REX  V.  INHABITANTS  OF  SETON. 
(Court  of  King's  Bench,  1797.    7  Term  Report,  373.) 

The  defendants,  the  inhabitants  of  the  township  of  Seton,  were  in- 
dicted for  not  repairing  a  road;  and  after  verdict  and  judgment  at 
the  quarter  sessions  a  certiorari  was  served  to  remove  the  record  here. 

Chambre  on  a  former  day  in  this  term  moved  to  quash  the  certiorari 
quia  improvide  emanavit,  observing  that  the  party  who  now  wished 
to  remove  the  record  could  only  do  so  by  writ  of  error. 

Law  now  showed  cause  against  that  rule,  and  insisted  that  all  the 
proceedings  below  were  stayed  by  the  issuing  of  the  certiorari,  which 
was  before  verdict  in  this  case.  In  2  Ld.  Raym.  1305,  Powell,  J.,  said : 
"A  writ  of  certiorari  removes  any  order  or  conviction,  though  they  be 
made  or  taken  after  the  teste  of  the  writ,  so  they  be  taken  before  the 
return."  And  in  that  case  the  inquisition  taken  after  the  teste  but  be- 
fore the  return  of  the  certiorari  was  quashed  by  this  court  for  defects 
appearing  on  the  inquisition. 

Lord  Kenyon,  C.  J.  In  the  case  of  summary  proceedings,  order?, 
and  convictions  before  magistrates,  the  proceedings  may  be  removed 
by  certiorari  after  judgment,  because  such  proceedings  can  only  be 
removed  by  certiorari;  but  where  a  judgment  has  been  given  on  an 
indictment,  the  record  must  be  removed  by  writ  of  error.  If  any  fraud 
or  misconduct  had  been  imputed  to  the  magistrates  in  proceeding  not- 
withstanding the  issuing  of  the  certiorari,  that  might  have  been  a 
ground  for  a  criminal  proceeding  against  them;  and  I  believe  there 
are  instances  in  which  a  criminal  information  has  been  granted  against 
magistrates  acting  in  sessions.  In  this  case  if  the  party,  who  sued  out 
the  certiorari,  wish  to  object  to  the  proceedings,  he  must  remove  the 
record  by  writ  of  error ;   but  this  writ  must  be  quashed. 

Per  Curiam.    Rule  absolute.^ 


LONG'S  CASE. 

(Court  of  Queen's  Bench,  1595.    Cro.  Eliz.  4S9.) 
William  Long  was  indicted  at  Norwich,  within  the  county  of  the 
city  of  Norwich,  of  the  felonious  stealing  of  a  piece  of  linen  cloth. 

1  Accord:     Hertel  v.  People,  74  111.  App.  304  (1S97).     See,  also,  Thayer  v. 
Commonwealth,  12  Mete.  (Mass.)  9  (1846). 


380  APPEAL,  WRIT   OF    ERROR,  AND   CERTIORARI.  (Ch.   IG 

and  was  thereof  arraigned,  and  pleaded  not  guilty,  and  was  found 
guilty,  and  prayed  his  clergy,  and  was  burnt  in  the  hand.  Upon  in- 
formation to  the  court  that  this  indicting  of  him  was  by  practice,  and 
he  found  guilty  upon  small  evidence,  he  obtained  a  certiorari  to  re- 
move the  whole  record  into  the  crown  office;  which  being  removed, 
there  were  divers  exceptions  to  the  indictment  to  discharge  the  same. 
For  it  was  moved  that  it  might  well  have  been  discharged  by  excep- 
tion, and  there  needed  not  any  writ  of  error  to  avoid  it ;  and  he  could 
not  have  a  writ  of  error,  as  the  case  is,  because  he  was  a  clerk  con- 
victed only,  and  not  attainted ;  for  when  he  prayed  his  clergy,  which 
was  allowed  him,  there  never  was  any  judgment  afterwards  given. 
And  of  that  opinion  was  the  whole  court. ^ 


TAFF  V.  STATE. 

(Supreme  Court  of  Errors  of  Connecticut,  1872.    39  Conn.  82.) 

Seymour,  J.  The  plaintiff  in  error  was  duly  convicted  of  violating 
the  first  section  of  "the  act  to  prevent  and  remove  nuisances."  The 
conviction  was  upon  the  presentment  of  an  informing  officer,  and 
section  13  of  the  act  provides  that  every  person  so  convicted  shall  be 
fined  not  less  than  $5  nor  more  than  $50.  It  appears  by  the  record 
that  the  fine  actually  imposed  by  the  court  is  $4,  and  because  the  fine 
is  thus  less  than  the  defendant  was  entitled  to,  he  brings  this  writ  of 
error  to  reverse  the  judgment. 

Notwithstanding  many  old  cases  to  the  contrary,  the  settled  law  in 
Connecticut  is  that  no  party  can  set  aside  a  judgment  by  writ  of  er- 
ror, unless  he  is  aggrieved  by  the  judgment  of  which  he  complains. 
This  sound  and  just  doctrine  is  so  fully  and  ablv  vindicated  by  the  late 
Chief  Justice  Williams  in  the  case  of  Ailing  v.  Shelton,  16  Conn.  436, 
as  to  require  no  further  discussion.  The  only  question  before  us  is 
how  far  that  doctrine  applies  to  the  present  case. 

We  think  it  clear  that  the  sentence  to  pay  a  fine  of  $4  is  not  war- 
ranted by  the  statute.  The  thirteenth  section  is  as  peremotory  in  its 
language  in  forbidding  a  fine  of  less  than  $5  as  it  is  in  forbidding  one 
of  more  than  $50.  If,  then,  we  decide  that  the  defendant  shall  pay 
the  $4  fine,  we  decide  that  he  must  pav  a  fine  which  the  court  below 
had  no  authority  to  inflict,  and  which  the  language  of  the  statute  for- 
bids to  be  inflicted. 

Is  the  defendant  aggrieved  by  this  sentence?  If  there  is  nothing 
more  in  the  case,  he  certainly  is  aggrieved  bv  an  order  to  pay  an  un- 
warrantable fine.  Can  we,  then,  use  the  defendant's  liability  to  the 
higher  penalty  as  a  ground  for  supporting  the  lower,  but  unwarranted, 

2  See,  also,  State  v.  Dauchertv.  39  W.  Va.  470,  19  S.  E.  872  (1894) ;  People 
V.  Walker  (Cal.)  61  Pac.  SO'o  (1900).    Cf.  State  v.  Morgan,  33  Md.  44  (1870). 


Ch.  16)  APPEAL,  WRIT   OF    EUUOR,  AND   CEKTIOKARI.  3S1 

penalty,  which  appears  by  the  record  to  have  been  inflicted?  We  think 
we  cannot.  It  is  true  that  the  defendant  is  not  as  much  damaged  by 
the  sentence  actually  given  as  he  would  have  been  had  the  legal  sen- 
tence been  pronounced.  But  the  legal  sentence  has  not  been  pro- 
nounced, and  we  have  no  power  to  pronounce  it. 

If  the  plaintiff  in  error  succeeds,  he  relieves  himself  from  an  un- 
lawful sentence,  and  does  not  thereby  ipso  facto  subject  himself  to  the 
lawful  penalty.  Whether  he  thereby  puts  himself  in  the  way  of  being 
subjected  to  the  lawful  penalty  upon  further  proceedings  we  have  no 
occasion  to  decide.  We  think,  therefore,  that  the  judgment,  so  far 
as  the  fine  is  concerned,  must  be. reversed. 

A  question  then  arises  what  efifect  has  such  reversal  upon  the  other 
parts  of  the  judgment.  The  statute  provides  that  the  court  before 
whom  the  conviction  is  had  shall  order  the  defendant  to  remove  such 
nuisance  within  30  days.  This  order  was  made,  and  a  further  order 
that  the  defendant  pay  a  bill  of  costs.  The  case  of  Matter  of  Sweat- 
man,  1  Cow.  (N.  Y.)  144,  is  full  to  the  point  that  a  judgment  may  be 
erroneous  in  part,  and  valid  as  to  the  residue.  That  case  was  well 
considered  and  elaborately  discussed,  and  is  cited  by  us  with  appro- 
bation in  the  recent  case  of  State  v.  James,  37  Conn.  3oo.  The  judg- 
ment there  was  a  full  and  complete  judgment  according  to  law,  witli 
the  addition  of  something  not  warranted  by  law,  and  the  maxim,  "Utile 
per  inutile  non  vitiatur,"  was  applicable,  and  applied  to  the  case. 

But  the  argument  here  for  the  plaintiff  in  error  is  that,  the  sentence 
to  pay  the  fine  being  illegal  and  reversed,  the  judgment  which  re- 
mains is  not  a  full  and  complete  judgment,  and  ought  for  that  cause 
to  be  set  aside.  But  it  is  difficult  to  see  how  the  plaintiff  in  error  can 
be  aggrieved  by  this  imperfection,  unless,  indeed,  it  be  so  imperfect  as 
for  that  cause  to  be  invalid.  If  the  statute  was  such  that  the  court 
were  prohibited  from  rendering  the  judgment  to  remove  the  nuisance 
and  pay  the  cost,  without  also  imposing  a  fine,  then  indeed,  perhaps 
the  plaintifif  in  error  might  be  aggrieved,  but  the  statute  makes  no 
such  prohibition.  On  the  contrary,  the  statute  expressly  requires  the 
court  to  order  the  removal  of  the  nuisance.  This  order  the  court 
below  made,  and  we  cannot  say  the  order  is  erroneous,  merely  be- 
cause the  court  failed  to  do  its  duty  in  respect  to  the  fine.  The  case 
of  Ailing  V.  Shelton,  is  full  to  this  point. 

The  judgment,  therefore,  of  the  superior  court  is  reversed  as  to 
the  fine,  but  in  all  respects  except  as  to  the  fine  it  is  affirmed.  In  this 
opinion  the  other  Judges  concurred.^ 

3Awor<l:  Stnte  v.  Kennefly.  88  Mo.  341  CISS.")):  Montgomery  v.  Stnte,  7 
Ohio  St.  107  (18.-)7). 

Where  two  persons  are  jointly  inflicted,  the  court  may.  on  writ  of  error, 
affirm  the  judeuient  as  to  one  defendant  ajQd  reverse  as  to  the  other.  Fletcher 
V.  People,  52  111.  395  (1869). 


382  APPEAL,  W  KIT   OF    ERROR,  AND   CERTIORARI.  (Ch.  16 

McDonald  v.  state. 

(Supreme  Court  of  Maryland,  18TG.    45  Md.  90.) 

Appeal  from  the  criminal  court  for  Baltimore  city. 

MiLivER,  J.*  The  plaintiff  in  error  was  indicted  for  murder,  and 
on  his  trial  was  found  guilty  of  manslaughter  and  not  guilty  of  mur- 
der. Upon  this  verdict  the  criminal  court  of  Baltimore  city,  in  which 
he  was  tried,  pronounced  judgment,  sentencing  him  to  "five  years 
imprisonment  in  the  jail  of  Baltimore  city,"  and  this  judgment  is 
brought  before  us  for  review,  by  writ  of  error. 

The  punishment  prescribed  by  law  (Acts  1864,  c.  39)  for  the  crime 
of  manslaughter  is  confinement  in  the  penitentiary  for  not  more  than 
ten  years,  or,  in  the  discretion  of  the  court,  a  fine  of  not  more  than 
five  hundred  dollars,  or  imprisonment  in  jail  for  not  more  than  two 
years,  or  both  fine  and  imprisonment  in  jail.  The  Attorney  General 
admits  that  through  inadvertence  a  sentence  was  imposed  on  the  pris- 
oner, which  the  law  does  not  authorize,  and  concedes,  upon  the  au- 
thority of  Watkins  v.  State,  14  Md.  412,  this  judgment  must  be  re- 
versed. That  is  undoubtedly  so,  and  the  only  other  question  we  can 
now  decide  is  whether  upon  such  reversal  this  court  has  the  power  to 
impose  the  proper  sentence,  or  to  remand  the  case  to  the  court  of  orig- 
inal jurisdiction  for  that  purpose.  In  the  absence  of  legislation  con- 
ferring that  authority  upon  this  court,  it  is  clear  it  has  no  power  to 
do  either  of  these  things. 

In  Watkins  v.  State,  where  the  judgment  was  reversed  for  a  sim- 
ilar defect,  the  court  say:  "The  effect  of  the  reversal  for  error  in  the 
judgment  itself  is  properly  stated  by  the  counsel  for  the  plaintiff  in 
error  in  his  argument.  It  defeats  all  former  proceedings  in  the  cause. 
This  will  abundantly  appear  by  reference  to  the  following  authorities 
cited  by  him  on  this  point :  1  Chitty's  Cr.  Law,  755 ;  4  Bl.  Com.  393 ; 
Hawkins,  Bk.  2,  c.  50,  §  19."  In  addition  to  these  authorities  w^e  re- 
fer to  several  more  recent  decisions  of  the  English  and  Irish  courts 
upon  the  subject,  viz.,  Rex  v,  Ellis,  5  Barn.  &  C.  395,  King  v.  Bourne, 
7  Adol.  &  E.  58,  Silversides  v.  The  Queen,  2  Gale  &  D.  617,  and  Hol- 
land V.  The  Queen,  2  Jebb  &  S.  357.  In  each  of  these,  and  especially 
in  the  first  two,  it  was,  upon  full  review  of  all  previous  decisions,  de- 
nied that  a  court  of  error  had  any  power,  in  a  case  like  this,  either  to 
remand  the  record  to  the  court  below  for  the  proper  judgment,  or  it- 
self to  pronounce  such  judgment  as  the  law  authorized,  and  Rex  v. 
Kenworthy,  1  Barn.  &  C.  711,  which  was  cited  in  support  of  the  power 
to  remand,  is  there  shown  to  be  a  case  in  which  no  judgment  had  in 
fact  been  given,  and  it  was  therefore  remitted  back  to  the  sessions  in 
order  that  a  judgment  might  be  rendered. 

4  Part  of  this  case  is  omitted. 


Ch.  16)  APPEAL,  WRIT   OF    ERROR,  AND   CERTIORARI.  383 

In  this  country,  also,  the  decisions  wherever  the  question  has  arisen, 
are  almost  uniform  and  to  the  same  effect.  It  was  so  decided  in  sev- 
eral cases  by  the  Supreme  Court  of  Massachusetts,  and  we  need  refer 
only  to  Christian  v.  Commonwealth,  5  Mete.  530.  After  these  deci- 
sions the  Legislature  of  that  state  provided  by  statute  that  "when- 
ever a  final  judgment  in  any  criminal  case  shall  be  reversed  by  the 
Supreme  Judicial  Court,  upon  a  writ  of  error,  on  account  of  error  in 
the  sentence,  the  court  may  render  such  judgment  therein  as  should 
have  been  rendered,  or  may  remand  the  case  for  that  purpose  to  the 
court  before  whom  the  conviction  was  had."  And  the  Supreme  Court 
of  that  state  has  since  acted  under  that  statute.  Jacquins  v.  Com- 
monwealth, 9  Cush.  279.  In  New  York  there  is  a  series  of  cases  in 
the  inferior  courts  to  the  like  effect,  and  in  Ratzky  v.  People,  29  X. 
Y.  124,  the  Court  of  Appeals  of  that  state  held  it  to  be  well-settled 
law  that,  but  for  the  authority  conferred  upon  that  court  by  the  stat- 
ute of  1863,  it  would  have  no  power  upon  reversal  of  the  judgment 
of  the  Supreme  Court  in  that  case  for  error  in  the  judgment  itself, 
either  to  pronounce  the  appropriate  judgment,  or  remit  the  record  to 
the  oyer  and  terminer,  to  give  such  judgment.  The  statute  referred 
to  declared,  in  effect,  that  the  appellate  court  shall  have  power  upon 
any  writ  of  error,  when  it  shall  appear  that  the  conviction  has  been 
legal  and  regular,  to  remit  the  record  to  the  court  in  which  such  con- 
viction was  had,  to  pass  such  sentence  thereon  as  the  appellate  court 
shall  direct.  There  are  also  numerous  cases  in  other  states  where  the 
same  question  has  been  incidentally  decided  in  the  same  way. 

In  Ex  parte  Lange,  18  Wall.  163,  21  L.  Ed.  872,  the  judges  of  the 
Supreme  Court  of  the  United  States,  though  differing  upon  other 
points,  agree  in  the  proposition  that,  apart  from  authority  conferred 
by  the  Legislature,  appellate  tribunals  have  only  the  power  of  reversal 
where  in  criminal  cases  the  judgments  are  entire,  and  not  such  as  the 
law  authorizes  to  be  imposed,  and  all  the  cases  on  the  subject  are  col- 
lected and  referred  to  in  the  dissenting  opinion  of  Mr.  Justice  Clifford, 
in  that  case. 

We  have  been  able  to  find  but  two  cases  which  are  in  even  seeming 
conflict  with  the  great  weight  and  current  of  judicial  precedent  and 
authority  on  this  question.     *     *     * 

Whether  the  plaintiff  in  error,  by  thus  requesting  and  obtaining  his 
discharge  from  this  indictment,  has  waived  the  protection  which  the 
law  provides  against  a  second  jeopardy,  so  that  he  can  be  reindicted 
and  retried  on  the  same  charge,  as  has  been  suggested  by  some  jurists 
and  text-writers,  is  a  question  we  are  not  now  at  liberty  to  decide.  It 
has  not  been  argued  on  either  side  by  counsel,  and  we  should  be  step- 
ping far  beyond  the  line  of  duty,  if  not  committing  a  grave  impro- 
priety, in  now  expressing  any  opinion  upon  it.  We  can  only  say  with 
Shaw,  C.  J.,  in  Christian  v.  Commonwealth,  that  "whatever  other  rem- 


384  APPEAL,  WRIT    OF    ERROR,  AND   CERTIORARI.  (Cll.  16 

edy  the  state  may  have,  it  is  not  competent  for  this  court  to  pass  a 
new  sentence  upon  this  prisoner,  nor  to  remit  the  case  to  the  criminal 
court."     Our  power  is  hmited  to  a  simple  reversal  of  the  judgment.^ 
Judgment  reversed.*^ 


JOAN  V.  COMMONWEALTH. 
(Supreme  Judicial  C«urt  of  Massachusetts,  Bristol,  1S83.    136  Mass.  162.) 

By  the;  Court.''  The  assignments  of  error  aver  that  the  building 
which  the  plaintifif  in  error  was  convicted  of  burning  was  not  a  dwell- 
ing house,  as  alleged  in  the  indictment,  and  that  it  was  not  the  prop- 
erty of  the  person  alleged  in  the  indictment  to  be  the  owner.  Both  of 
these  facts  were  put  in  issue  and  were  tried  in  the  superior  court.  The 
plaintiff  in  error  cannot  retry  them  upon  a  writ  of  error.  No  error 
in  the  judgment  is  shown,  and  the  evidence  offered  was  properly  re- 
jected. 

Exceptions  overruled. 

5  After  the  above  decision  was  rendered,  the  prisoner,  Patrick  McDonald, 
was  arrested,  while  in  the  jail,  upon  a  bench  warrant  issued  out  of  the  crimi- 
nal court  of  Baltimore  city,  charging  him  with  the  murder  of  Daniel  Brown. 
Whereupon  he  petitioned  Hon.  Jas.  L.  Rartol,  C.  J.,  for  a  writ  of  habeas 
coriJUS,  which  was  granted ;  and  upon  the  hearing  it  was  admitted,  on  the 
part  of  the  state,  that  the  felony  and  murder  charged  in  the  warrant  was 
the  same  as  that  for  which  the  petitioner  had  before  been  indicted  and 
tried.  The  Chief  Judge,  after  full  argument,  discharged  the  petitioner,  decid- 
ing:    *     *     * 

(4)  That  the  petitioner,  by  suing  out  his  writ  of  error,  and  obtaining  a 
reversal  of  the  .iudgment.  had  not  waived  the  protection  which  the  law  pro- 
vides against  a  second  jeopardy,  and  was  not  liable  to  be  again  indicted  and 
tried  for  the  same  offense. 

In  the  opinion  rendered  by  the  Chief  Judge,  he  remarked:  "If  the  prisoner, 
after  having  been  duly  convicted  of  manslaughter,  escapes  punishment  by 
reason  of  an  error  in  the  sentence,  this  results  from  the  want  of  legislative 
provision  in  such  cases  to  enable  the  court  of  last  resort  to  correct  the  sen- 
tence, or  to  remand  the  case  to  the  criminal  court  for  that  purpose.  Such 
legislation  was  had  in  England  in  184S  (11  &  12  Vict.  c.  78),  and  has  been 
enacted  in  several  of  the  states." 

6  Compare  Wharton  v.  State.  41  Miss.  680  (1868). 

7  Part  of  this  ease  is  omitted. 

"It  is  only  legal  errors  which  can  be  considered  on  writs  of  error — errors 
appearing  in  the  record,  or  by  excei»tions  taken  upon  the  trial.  *  *  *  in 
People  V.  Thompson,  41  N.  Y.  1,  the  prisoner  was  convicted  of  manslaughter 
in  the  second  degree,  and,  although  it  appeared  by  the  evidence  that  the 
prisoner  was  not  guilty  of  that  offense,  the  court  held  that,  as  there  was  no 
exception,  it  could  not  reverse  the  judgment."  Andrews,  J.,  in  Gaffney  v. 
People,  50  N.  Y.  425  (1872). 

Accord:  Claassen  v.  U.  S.,  142  U.  S.  140,  12  Sup.  Ct.  169,  35  L.  Ed.  906 
(1891). 


Ch.  16)  APPEAL,  WRIT   OF    EUKOK,  AND   CERTIORARI.  385 

HORNBERGER  v.  STATE. 
(Supreme  Ck)urt  of  Indiana,  1S54.     5  lud.  300.) 

Appeal  from  the  Dearborn  court  of  coninion  pleas. 

Stuart,  J.  Iniormalion  against  Hornberger  for  retailing,  etc.  Tri- 
al by  the  court,  hne  $10,  and  judgment  accordingly. 

Hornberger  appeals;  but  on  what  grounds  does  not  very  clearly 
appear. 

There  was  no  exception  taken  to  any  ruling  of  the  court  in  the 
progress  of  the  trial.    2  Rev.  St.  377. 

No  motion  was  made  for  a  new  trial,  nor  in  arrest  of  judgment  2 
Rev.  St.  380. 

There  is  none  of  the  evidence  in  the  record ;  nor  does  it  appear  that 
he  even  interposed  a  motion  to  quash  the  information.    2  Rev.  St.  368. 

At  the  common  law  there  were  some  defects  which  might  be  taken 
advantage  of,  either  by  motion  to  quash,  or  by  motion  in  arrest,  or 
upon  error.  But  now  the  writ  of  error  is  abolished.  2  Rev.  St.  158 ; 
Id.  381.  The  motion  to  quash,  motion  for  a  new  trial,  and  motion  in 
arrest  of  judgment  yet  remain,  curtailed  and  modified  by  statute.  2 
Rev.  St.,  supra.  In  their  very  nature,  each  of  these  motions,  with 
their  several  incidents,  are  to  be  addressed  to  the  court  below.  But 
the  statute  does  not  leave  this  matter  in  doubt.  It  is  minutely  provided 
when,  how,  and  in  what  order  they  are  to  be  made.  2  Rev.  St.,  supra. 
If  any  ruling  of  the  court  in  the  premises  is  deemed  incorrect,  the  stat- 
ute further  points  out  the  time  and  mode  of  exception  and  appeal.  2 
Rev.  St.  377,  381. 

These  are  the  established  modes  of  raising  points  in  the  record  for 
the  consideration  of  this  court.  A  bare  appeal  cannot  of  itself  avail 
the  party  taking  it,  unless  the  preliminary  steps  to  raise  questions  in 
the  record  have  been  adopted.  It  is  not  the  errors  pointed  out  in  ar- 
gument that  we  are  to  review.  Nor,  in  seneral,  even  the  errors  ap- 
parent in  the  record.  But  it  is  the  errors  to  which  the  aggrieved  partv 
has  excepted  at  the  time,  in  the  manner  pointed  out  in  the  foregoing 
statutes. 

Whether  there  may  not  be  some  exceptions  to  this  rule  is  not  now 
before  us  to  inquire,  and  no  opinion  is  intimated. 

It  is  sufficient  in  this  case  that  Hornbereer  does  not  annear  as  ob- 
jecting to  anything.  There  is  consequently  nothing  presented  in  the 
record  for  us  to  review.  We  are  bound  to  presume  tliat  all  things 
were  done  correctly  in  the  common  pleas,  unless  tiie  contrary  is  made 
to  appear. 

The  whole  spirit  of  the  new  Code  is  to  hold  every  failure  to  as- 
sert a  legal  right  at  the  proper  time  to  be  a  waiver  of  tha<^  ri-^ht.     It 
gives  still  greater  consequence  to  the  legal  maxim  tliat  "the  law  favors 
the  vigilant."    To  this  end  it  is  specific  as  to  the  objections  available 
Mik.Cb.Pr.— 25 


386  '  APPEAL,  WRIT   OF    ERROR,  AND   CERTIORARI.  (Ch,   16 

in  criminal  cases ;  and  it  is  specific  as  to  when,  where,  and  in  what 
manner  they  should  be  made.  The  object  seems  to  have  been  that 
cases  should  not  be  reversed  in  this  court  on  questions  never  raised 
or  agitated  in  the  court  below. 

If,  therefore,  parties  would  have  decisions  made  against  them  re- 
versed, they  must  take  the  proper  steps,  at  the  proper  time ;  and  the 
record  must  show  that  fact.  2  Rev.  St.  377,  380.  It  is  too  late  to 
raise  such  questions  for  the  first  time  in  this  court,  by  way  of  argu- 
ment. 

This  doctrine  does  not  conflict  with  Divine  v.  State,  4  Ind.  210 ; 
for  there  the  defendant  interposed  a  motion  to  quash. 

Nor  does  it  conflict  with  Hare  v.  State,  4  Ind.  241 ;  for  there  the 
defective  allegation  was  aided  by  the  evidence. 

Nor  does  it  conflict  with  Wood  v.  State  (at  the  present  term)  5 
Ind.  433 ;  for  that  case  is  governed  by  the  law  in  force  prior  to  the 
taking  effect  of  the  Revised  Statutes. 

There  being  no  question  raised  in  the  record,  and  nothing  for  us 
to  decide,  the  judgment  of  the  common  pleas  must  stand. 

Pe;r  Curiam.    The  judgment  is  affirmed,  with  costs.* 


TAYLOR  v.  COMMONWEALTH. 
(Supreme  Court  of  Pennsylvania,  1862.     44  Pa.  131.) 

Thompson,  J.  This  is  a  common-law  writ  of  error,  and  brings  up 
the  record  of  the  trial  and  conviction  of  the  plaintiff  in  error  for  the 
murder  of  one  George  Jackson,  of  the  county  of  Mercer,  on  the  22d 
of  October,  1861.  The  conviction  was  of  murder  in  the  second  de- 
gree, upon  which  he  was  sentenced  to  solitary  confinement  at  hard  la- 
bor, in  the  Western  Penitentiary,  for  the  full  maximum  period  for 
the  first  offense  of  this  kind,  viz.,  eleven  years  and  six  months. 

No  allegation  is  made  that  the  prisoner  had  not  a  full,  fair,  and  im- 
partial trial  by  a  jury  of  the  vicinage,  aided  by  counsel,  and  presided 
over  by  a  competent  and  legally  constituted  court ;  nor  that  every  con- 
stitutional and  legal  right  was  not  accorded  to  him  to  the  fullest  ex- 
tent. But  the  complaint  is  that  it  does  not  appear  by  the  record  that 
he  had  these  constitutional  and  legal  rights  accorded  to  him,  and  I 
agree  that  if  this  were  true  the  conviction  could  not  stand.  In  or- 
der to  ascertain  how  this  is.  we  must  apply  ourselves  to  ascertain  what 
is  the  record.  Is  it  the  minutes  of  the  clerk,  or  the  record  presumed 
to  be  made  up  by  the  court,  mntaining  a  short  and  distinct  history  of 
the  proceedings  constituting  the  trial  and  judgment,  and  kept  among 
the  records  in  the  well-known  and  authorized  record  books?  If  it  be 
not  the  latter,  there  is  no  safety  in  records  and  their  imputed  abso- 

«  Accord :    State  v.  Lawrence,  81  N.  C.  522  (1879). 


Ch.    16)  APPEAL,  WRIT   OF    EUKOR,  AND   CERTIORARI.  387 

lute  verity  would  be  a  mere  abstraction,  meaning  nothing,  and  resting 
only  on  a  duty  to  believe  in  them.  When,  therefore,  a  record  is  made 
up,  the  elements  constituting  it  are  not  sufifered  to  contradict  it.  Nei- 
ther the  knowledge  of  the  court  nor  the  minutes  of  the  clerk  can  avail 
for  this.  Either  one  of  them  or  both  together  may  suffice  to  correct 
It,  if  resorted  to  in  proper  time,  but  the  elements  so  used  to  correct 
become  tlie  record,  and  are  no  longer  the  recollection  of  the  court, 
or  the  minutes  of  the  clerk. 

Now,  we  have  here  a  complete  record  o'f  the  court,  and  also  the 
minutes  of  the  clerk,  from  which  it  is  to  be  presumed  the  record  was 
made  up,  and  it  is  claimed  that  the  latter  may  not  merely  explain, 
but  contradict,,  the  former;  that  we  must  consult  the  inorganized  and 
mformal  matter,  and  so  set  aside  the  organized,  approved,  and  formal 
record;  that  is  to  say,  attack  and  overturn  the  record  by  something 
less  than  the  record— overthrow  absolute  verity  by  that  which  import^ 
no  absolute  verity.  To  state  the  proposition  is  to  demonstrate  its 
fallacy. 

Now,  what  does  the  record  of  the  court  and  its  legal  and  necessary 
intendments  show?     First.  That  on  the  21st  of  January,   1S62,   the 
prisoner  was  brought  into  open  court,  and  being  arraigned,  did   for 
himself  plead  not  guilty,  and  of  this  put  himself  on  God  and  the  coun- 
try.    District  Attorney  similiter,  and  issue,  and  thereupon  he  was  re- 
manded to  jail.     That  on  the  22d  of  January,  the  day  following,  the 
court  being  in  session,  the  prisoner  being  again  brought  into  court  by 
the  sheriff,  the  clerk  was  ordered  to  draw  a  jury  from  a  box  contain- 
ing the  names  of  jurymen  regularly  summoned  and  in  attendance,  and 
that  the  clerk  did  so  call  a  jury,  "the  said  Dennison  Tavlor  having 
had  his  legal  and  proper  challenges."     That  they  came,  to  wit,  etc?, 
"twelve  good  and  lawful   men,   summoned   and   returned,   impaneled 
and  sworn,"  "who  on  the  25th  day  of  January,  1862,  the  prisoner  be- 
mg  present  in  court,  on  their  solemn  oaths  respectively  do  say  that 
they  find  the  prisoner  at  the  bar,  Dennison  Taylor,  guilty  of  murder 
in  the  second  degree,  in  manner  and  form  as  he  stands  indicted,"  and 
thereupon  the  prisoner  was  remanded  to  jail  by  the  court.     On  the 
next  day,  the  26th,  the  record  shows  that  the  prisoner  was  brought 
mto  court,  and  "having  been  asked  if  he  had  anything  to  sav  why  sen- 
tence should  not  be  passed  upon  him,  and  having  said  he  hath  nothing 
to  say  other  than  he  hath  said,"  the  court  thereupon  passed  sentence. 
This  is  the  usual  formal  record.    The  date,  if  it  be  material  to  see 
when  the  jury  was  sworn,  is  referable  to  the  date  when  the  record 
shows  they  were  called  or  balloted  for.     No  contrary  presumption  ov- 
errides the  date.    The  record  is  express  that  the  prisoner  was  present, 
and  had  his  legal  and  proper  challenges  before  the  jury  was  sworn. 
No  record  will  give  more  details  than  this,  for  it  is  the  usual  and  ordi- 
nary practice  to  swear  the  jury  separately,  and  when  the  last  juror  is 
selected  he  is  sworn,  so  that  when  the  record  shows  that  the  prisoner 


388  APPEAL,  WRIT   OF    ERROR,  AND    CERTIORARI.  (Ch.  16 

was  present,  and  had  his  legal  and  proper  challenges,  it  necessarily 
shows  iliat  he  was  present  during  the  entire  selection  and  qualification 
of  the  jury. 

No  record,  after  the  trial  commences,  ever  does  more  than  show 
the  action  of  the  court  and  jury.  It  does  not  set  forth  who  were  coun- 
sel, in  what  order  the  jury  were  addressed,  when  the  judge  charged 
the  jury,  whether  or  not  the  prisoner  was  present  at  that  moment,  or 
takes  any  account  of  adjournments.  All  these  things  are  regulated 
by  law  and  usage,  and  the  presumption  in  regard  to  them  is  that  they 
have  been  done  according  to  law,  and  rightly  done. 

Since  the  enactment  of  the  new  Penal  Code  and  the  criminal  pro- 
cedure act,  in  which  a  writ  of  error  lies  to  bring  up  the  rulings  and 
decisions  of  the  court  while  conducting  a  trial  for  homicide,  there  is 
evident  propriety  in  the  rule  laid  down  by  this  court  in  Cathcart  v. 
Commonwealth,  1  Wright,  110.  There  my  Brother  Strong,  in  deliv- 
ering the  opinion  of  the  court,  said:  "But,  in  criminal  as  well  as  in 
civil  cases,  our  inquiries  must  be  confined  to  the  record,  and  in  both 
classes  of  cases  there  is  but  one  rule  of  construction.  In  both  there 
is  a  presumption  that  the  proceedings  were  regular,  and  it  is  incum- 
bent on  the  plaintiff  in  error  to  show  by  the  record  that  errors  were 
committed  before  we  can  interfere.  Since  the  allowance  of  writs  of 
error  to  the  rulings  of  the  court,  every  denial  of  a  right  to  the  pris- 
oner can  be  made  to  appear  on  the  record,  and  when  none  such  ap- 
pear in  the  course  of  the  trial,  or  in  points  to  the  court,  the  presump- 
tion that  no  such  error  has  been  made  receives  great  additional  force." 

But,  taking  the  record  as  it  stands,  we  have  the  facts  distinctly  ap- 
pearing of  the  arraignment  in  court  of  the  prisoner,  and  of  his  pres- 
ence when  the  jury  were  selected  and  sworn,  when  the  verdict  was 
rendered,  and  when  the  sentence  was  pronounced.  No  adjournments 
are  noticed  in  the  record,  and  consequently,  in  strictness,  no  legal  pre- 
sumption of  absence  from  the  court  arises  on  it.  The  legal  inference 
would  be  that  no  adjournments  took  place,  and  that  the  prisoner  was 
in  court  all  the  time.  The  record  shows  no  adjournments,  and  how  is 
it  to  be  shown  that  there  were  any?  If  strict  law  must  be  the  rule  in 
such  a  case,  then  this  record  covers  every  ground  of  objection  that 
the  prisoner  was  not  shown  to  be  present.  This  is  the  legal  presump- 
tion from  the  record.  But  without  this,  when  we  find  his  presence 
noticed  wherever  it  is  usual  to  be  noticed,  when  we  find  him  answer- 
ing that  he  has  nothing  further  to  say  why  sentence  should  not  be 
pronounced  "than  he  hath  said,"  and  not  an  allegation  of  any  error 
committed  in  fact,  we  think  that  the  fair  intendment  of  the  record 
must  be  that  the  prisoner  enjoyed  all  his  constitutional  rights  on  the 
trial. 

How  it  can  be  alleged  as  error  that  the  record  does  not  show  that 
the  prisoner  had  not  an  opportunity  to  poll  the  jury  I  cannot  compre- 
hend.    He  was  present  when  the  verdict  was  rendered.     Now,  in  the 


Ch.  16)  APPEAL,  WRIT   OF    ERROR,  AND   CERTIORARI.  389 

absence  of  any  fact  to  show  that  he  was  restrained,  the  presumption 
surely  is  that  he  might  have  poUed  the  jury  if  he  had  chosen  to  do  so. 
If  he  does  not  choose  to  resort  to  the  special  form  of  taking  the  ver- 
dict, the  record  was  quite  satisfactory  when  it  showed  the  verdict  taken 
in  the  usual  form.  We  think  the  trial,  as  exhibited  by  the  record, 
was  entirely  according  to  the  substantial  forms  of  law.  The  history 
it  gives  is  sufficient,  and  I  cannot  well  see  how  the  clerk  could  have 
otherwise  recorded  the  arraignment,  or  the  drawing  or  impaneling 
of  the  jury,  than  in  the  past  tense.  In  Hamilton  v.  Commonwealth, 
IG  Pa.  133,  55  Am.  Dec.  4S5,  the  doctrine  applicable  to  this  objection, 
as  well  as  to  the  other  exceptions  in  the  case,  is  stated  by  Gibson,  C. 
J.,  thus :  "With  us,  a  full  record  is  seldom,  perhaps  never,  formally 
made  up ;  but  the  docket,  which  stands  in  its  place,  must  contain  the 
substantial  parts  of  it,  from  which,  together  with  other  records  in  the 
office,  such  a  record  might  be  formed.  It  is  because  the  proceedings 
remain  on  paper  that  we  have  been  able  to  dispense  with  strict  form 
as  to  tense  and  person,  holding  fast,  however,  to  matter  of  substance." 
This  doctrine  calls  largely  on  the  presumption  "rite  acta  est,"  and 
this  in  accordance  with  what  is  obviously  proper,  in  view  of  the  fact 
that  every  denial  of  right  to  a  person  on  trial  may  be  placed  on  the 
record  for  review.  It  was  not  always  so,  and  then  greater  strictness 
was  more  needed. 

I  see  nothing  in  the  authorities  cited  by  the  counsel  for  the  prisoner 
which  requires  a  different  view  of  this  case  than  that  we  have  taken, 
and,  as  we  think  the  record  substantially  sufficient,  this  sentence  must 
be  affirmed. 


Ex  parte  TONEY. 
(Supreme  Court  of  INlissouri,  1848.    11  Mo.  662.) 

Per  Curiam.  In  July,  18-12,  Toney,  a  slave,  escaped  from  the 
service  of  his  master,  Thomas  Williams,  who  resided  in  Montgomery 
county,  in  the  state  of  Tennessee,  and  came  to  St.  Louis,  in  this  state. 
Whilst  in  that  county,  he  committed  four  grand  larcenies,  for  whicli 
he  was  severally  indicted  and  tried  at  the  July  term  of  the  criminal 
court  of  St.  Louis  county,  and  sentenced  to  eleven  years'  imprisonment 
in  the  penitentiary.  He  was  arraigned  as  a  free  person  by  the  name 
of  William  Morton,  and  on  his  arraignment  pleaded  guilty  to  the  sev- 
eral indictments.  His  master,  who  had  not  heard  of  him  since  his 
escape  in  1842,  being  informed  of  his  confinement  in  the  penitentiary 
here,  sent  on  an  agent,  Wm.  H.  Stuart,  who  identified  the  slave,  and 
on  his  behalf,  who  freely  consents  to  this  proceeding,  and  as  agent 
for  his  owner,  applied  to  this  court  for  a  writ  of  habeas  corpus  for 
the  discharge  of  the  slave,  as  the  law  does  not  warrant  his  confine- 
ment in  the  penitentiary  for  the  offenses  of  which  he  was  convicted ; 


390  APPEAL,  WRIT    OF   ERROR,  AND   CERTIORARI.  (Cll.  16 

he  not  being  a  free  person.  These  facts  appearing  in  the  petition  and 
the  exhibits  thereto,  it  was  agreed  by  the  parties  that  the  right  of  the 
prisoner  to  his  discharge  should  be  determined  on  the  appHcation  for 
the  writ. 

In  deciding  on  the  propriety  of  discharging  a  prisoner  on  habeas 
corpus,  this  court  exercises  no  appeUate  jurisdiction.  In  the  exer- 
cise of  this  power,  it  is  confined  within  the  same  Hmits  which  would 
restrain  a  judge  of  the  circuit  or  county  court  in  its  exercise.  It  can 
give  no  other  or  greater  relief  than  is  afforded  by  these  officers.  If 
the  idea  of  all  appellate  jurisdiction  is  discarded,  it  will  be  obvious 
that  this  court,  nor  no  other  court  nor  officer,  can  investigate  the  le- 
gality of  a  judgment  of  a  court  of  competent  jurisdiction  by  a  writ  of 
habeas  corpus.  If  the  court  has  jurisdiction  of  the  subject-matter  and 
of  the  person,  although  its  proceedings  may  be  irregular  or  erroneous, 
yet  they  cannot  be  set  aside  in  this  proceeding.  The  party  must  re- 
sort to  his  writ  of  error  or  other  direct  remedy  to  reverse  or  set  aside 
the  judgment,  for  in  all  collateral  proceedings  it  will  be  held  to  be 
conclusive. 

The  sixth  section  of  the  third  article  of  the  act  regulating  proceed- 
ings on  writs  of  habeas  corpus  expressly  directs  that  the  prisoner  shall 
be  remanded  if  it  appear  that  he  is  confined  by  virtue  of  the  final  judg- 
ment or  decree  of  any  competent  court  of  civil  or  criminal  jurisdic- 
tion. This  plain  and  express  provision  existing,  and  being  in  conso- 
nance to  settled  principles,  we  do  not  feel  ourselves  authorized  to  look 
into  other  parts  of  the  statute  in  order  to  ascertain  whether  relief  may 
not  be  afforded  by  them,  as  we  cannot  suppose  that  the  Legislature  in- 
tended to  repeal  it  by  any  implication. 

There  is,  then,  the  judgment  of  a  court  of  competent  jurisdiction, 
authorizing  the  confinement  of  the  prisoner,  and  we  cannot,  in  this 
collateral  proceeding,  question  the  correctness  of  that  judgment.  The 
judgment  of  the  court  is,  however,  erroneous,  and  on  the  facts  as- 
sumed the  party  is  entitled  to  some  remedy.  The  error  is  one  of  fact. 
As  the  record  stands  it  warrants  the  judgment,  and  it  is  an  error 
of  fact  which  produces  this  difficulty.  If  the  prisoner  was  a  slave, 
and  it  so  appeared  on  the  record,  the  judgment  would  be  clearly  er- 
roneous. It  is  settled  that  for  an  error  in  fact  in  the  proceedings  of 
a  court  of  record  a  writ  of  error  coram  vobis  will  lie  to  revoke  the 
judgment,  whether  it  be  a  court  of  civil  or  criminal  jurisdiction.  2 
Tidd,  1191,  1193. 

If  a  judgment  is  rendered  against  an  infant  who  appears  by  attor- 
ney, this  is  an  error  of  fact  for  which  a  writ  of  error  coram  vobis  will 
lie.  So,  if  a  judgment  is  rendered  against  a  married  woman  who  is 
sued  as  a  feme  sole;  and  so,  it  is  conceived,  of  a  judgment  sentencing 
an  infant  under  sixteen  years  of  age  to  imprisonment  in  the  peniten- 
tiary, as  our  statute  does  not  permit  such  punishment  to  be  inflicted 
on  him. 


Ch.    16)  APPEAL,  WRIT   OF    ERROR,  AND    CERTIORARI.  391 

No  difference  is  seen  between  those  cases  and  that  now  before  the 
court,  and  as  the  prisoner  consents  and  is  anxious  for  his  discharge, 
we  are  of  opinion  that  the  criminal  court  of  St.  Louis  county  can 
award  the  writ  and  give  the  party  such  rehef  as  he  is  entitled  to  by 
law. 

Writ  denied,  the  other  judges  concurring.® 


UNITED  STATES  v.  SANGES  et  al. 

(Supreme  Court  of  the  United  State.*;,  1892.    144  U.  S.  310,  12  Sup.  Ct.  OOD.  ?,0 

L.  Kd.  44.J.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Georgia. 

Indictment  of  George  Sanges,  Dennis  Alexander,  Isaac  Smith,  and 
Charles  Porter  for  murder,  *  *  *  The  defendants  demurred  to 
the  indictment.     *     *     * 

On  October  5,  1891,  the  Circuit  Court,  held  by  Mr.  Justice  Lamar 
and  Judge  Newman,  adjudged  that  the  demurrer  was  well  founded 
in  law,  and  that  it  be  sustained,  and  the  indictment  quashed.  48 
Fed.  78. 

This  writ  of  error  was  thereupon  sued  out  by  the  L'nited  States, 
and  was  allowed  by  the  presiding  justice.  The  defendants  in  error 
moved  to  dismiss  the  writ  of  error  for  want  of  jurisdiction. 

Mr.  Justice  Gray,  delivered  the  opinion  of  the  court.^°  The  juris- 
diction of  this  court  is  invoked  by  the  United  States  under  that  provi- 
sion of  the  judiciary  act  of  1891  by  which  "appeals  or  writs  of  error 
may  be  taken  from  the  District  Courts  or  from  the  existing  Circuit 
Courts  direct  to  the  Supreme  Court,"  "in  any  case  that  involves  the 
construction  or  application  of  the  Constitution  of  the  United  States.'* 
Act  March  3,  1891,  c.  517,  §  5,  26  Stat.  p.  827  (U.  S.  Comp.  St.  1901. 
p.  549). 

But  the  question  which  lies  at  the  very  threshold  is  whether  this 
provision  has  conferred  upon  the  United  States  the  right  to  sue  out 
a  writ  of  error  in  any  criminal  case. 

This  statute,  like  all  acts  of  Congress,  and  even  the  Constitution  it- 
self, is  to  be  read  in  the  light  of  the  common  law.  from  which  our  sys- 
tem of  jurisprudence  is  derived.  Charles  River  Bridge  v.  Warren 
Bridge,  11  Pet.  420,  545,  9  L.  Ed.  773  ;  Rice  v.  Railroad  Co..  1  Black. 
358,  374,  375,  17  L.  Ed.  147;  U.  S.  v.  Carll,  105  U.  S.  Gil,  2(5  L.  Ed. 
1135 ;  Ex  parte  Wilson,  114  U.  S.  417,  422,  5  Sup.  Ct.  935.  29  L.  Ed. 
89 ;   1  Kent,  Comm.  336.    As  aids,  therefore,  in  its  interpretation,  we 

9  Accord:  Ex  parte  Gray,  77  Mo.  100  (1SS2) ;  Sauders  v.  State,  So  lud.  CIS. 
44  Am.  Rep.  29  (18S2). 

10  Part  of  the  opiuiou  is  omitted. 


392  APPEAL,  WKIT   OF   JfiKKOK,  AMD    CEKTIOKAKI.  (Cll.   16 

naturally  turn  to  the  decisions  in  England  and  in  the  several  states  of 
the  Union,  whose  laws  have  the  same  source. 

The  law  of  England  on  this  matter  is  not  wholly  free  from  doubt. 
But  the  theory  that  at  common  law  the  king  could  have  a  writ  of  er- 
ror in  a  criminal  case  after  judgment  for  the  defendant  has  little  sup- 
port beyond  sayings  of  Lord  Coke  and  Lord  Hale,  seeming  to  imply, 
but  by  no  means  affirming,  it,  two  attempts  in  the  House  of  Lords, 
near  the  end  of  the  seventeenth  century,  to  reverse  a  reversal  of  an 
attainder,  and  an  Irish  case  and  two  or  three  English  cases,  decided 
more  than  60  years  after  the  Declaration  of  Independence,  in  none  of 
which  does  the  question  of  the  right  of  the  crown  in  this  respect  ap- 
pear to  have  been  suggested  by  counsel  or  considered  by  the  court.  3 
Inst.  2U;  2  Hale,  P.  C.  347,  248,  394,  395;  Rex  v.  Walcott,  Show. 
Pari.  Cas.  127 ;  Rex  v.  Tucker,  Show.  Pari.  Cas.  186,  1  Ld.  Raym. 
1;  Regina  v.  Houston  (1841)  2  Craw.  &  D.  191 ;  The  Queen  v.  Millis 

(1843)  10  Clark  &  F.  534;  The  Queen  v.  Wilson  (1844)  6  Q.  B.  620; 
The  Queen  v.  Chadwick  (1847)  11  Q.  B.  173,  205.  And  from  the  time 
of  Lord  Hale  to  that  of  Chad  wick's  Case,  just  cited,  the  text-books, 
with  hardly  an  exception,  either  assume  or  assert  that  the  defendant 
(or  his  representative)  is  the  only  party  who  can  have  either  a  new 
trial  or  a  writ  of  error  in  a  criminal  case,  and  that  a  judgment  in  his 
favor  is  final  and  conclusive.  See  2  Hawk.  P.  C.  c.  47,  §  12 ;  Id.  c. 
50,  §  10  et  seq. ;  Bac.  Abr.  "Trial,"  L,  9,  "Error,"  B ;  1  Chit.  Crim. 
Law,  657,  747;  Starkie,  Crim.  PI.  (2d  Ed.)  357,  367,  371;  Archb. 
Crim.  PI.  (12th  Eng.  and  6th  Am.  Ed.)  177,  199. 

But  whatever  may  have  been,  or  may  be,  the  law  of  England  upon 
that  question,  it  is  settled  by  an  overwhelming  weight  of  American 
authority  that  the  state  has  no  right  to  sue  out  a  writ  of  error  upon  a 
judgment  in  favor  of  the  defendant  in  a  criminal  case,  except  under 
and  in  accordance  with  express  statutes,  whether  that  judgment  was 
rendered  upon  a  verdict  of  acquittal,  or  upon  the  determination  by 
the  court  of  a  question  of  law. 

In  a  few  states  decisions  denying  a  writ  of  error  to  the  state  after 
judgment  for  the  defendant  on  a  verdict  of  acquittal  have  proceeded 
upon  the  ground  that  to  grant  it  would  be  to  put  him  twice  in  jeopardy, 
in   violation   of  a    constitutional   provision.      See    State  v.   Anderson 

(1844)  3  Smedes  &  M.  (Miss.)  751;  State  v.  Hand  (1845)  6  Ark. 
169,  42  Am.  Dec.  689;  State  v.  Burris  (1848)  3  Tex.  118;  People  v. 
Webb  (1869)  38  Cal.  467;  People  v.  Swift  (1886)  59  Mich.  529,  541, 
26  N.  W.  694. 

But  the  courts  of  many  states,  including  some  of  great  authority, 
have  denied,  upon  broader  grounds,  the  right  of  the  state  to  bring  a 
writ  of  error  in  any  criminal  case  whatever,  even  when  the  discharge 
of  the  defendant  was  upon  the  decision  of  an  issue  of  law  by  the  court, 
as  on  demurrer  to  the  indictment,  motion  to  quash,  special  verdict, 
or  motion  in  arrest  of  judgment. 


Ch.  16)  APPEAL,  WRIT   OF   ERROR,  AND   CERTIORARI.  39:' 

The  Supreme  Court  of  Tennessee,  in  1817,  in  dismissing  an  appeal 
by  the  state  after  an  acquittal  of  perjury,  said:  "A  writ  of  error,  or 
appeal  in  the  nature  of  a  writ  of  error,  will  not  lie  for  the  state  in  such 
a  case.  It  is  a  rule  of  the  common  law  that  no  one  shall  be  broui;iu 
twice  into  jeopardy  for  one  and  the  same  offense.  Were  it  not  for  this 
salutary  rule,  one  obnoxious  to  the  government  might  be  harrassed 
and  run  down,  by  repeated  attempts  to  carry  on  a  prosecution  against 
him.  Because  of  this  rule  it  is  that  a  new  trial  cannot  be  granted  in 
a  criminal  case,  where  the  defendant  is  acquitted.  A  writ  of  error  will 
lie  for  the  defendant,  but  not  against  him.  This  is  a  rule  of  such  vital 
importance  to  the  security  of  the  citizen  that  it  cannot  be  impaired  but 
by  express  words,  and  none  such  are  used  in"  the  statutes  of  the  state. 
"Neither  does  the  Constitution  (article  11,  §  10)  apply,  for  here  the 
punishment  does  not  extend  to  hfe  or  limb.  The  whole  of  this  case 
rests  upon  the  common-law  rule."  State  v.  Reynolds,  4  Hayw. 
(Tenn.)  110.  In  a  similar  case,  in  1829,  the  same  court  said:  "The 
court  are  unanimously  of  opinion  that  no  appeal  lies  for  the  state  from 
a  verdict  and  judgment  of  acquittal  on  a  state  prosecution.  The  state, 
having  established  her  jurisdiction  and  tried  her  experiment,  should 
be  content.  To  permit  appeals  might  be  the  means  of  unnecessary 
vexation."  State  v.  Hitchcock,  cited  in  6  Yerg.  360,  27  Am.  Dec.  169. 
In  1834  the  same  rule  was  applied  where,  after  a  verdict  of  guilty,  a 
motion  in  arrest  of  judgment  had  been  made  by  the  defendant  and  sus- 
tained by  the  court.    State  v.  Solomons,  6  Yerg.  360,  27  Am,  Dec.  469. 

In  1820  a  writ  of  error  obtained  by  the  attorney  for  the  common- 
wealth to  reverse  a  judgment  for  the  defendant  on  demurrer  to  an 
information  for  unlawful  gaming  was  dismissed  by  the  General  Court 
of  Virginia,  saying  only :  "The  court  is  unanimously  of  opinion  that 
the  writ  of  error  improvidently  issued  on  the  part  of  the  common- 
wealth, because  no  writ  of  error  lies  in  a  criminal  case  for  the  common- 
wealth."   Com.  V.  Harrison,  2  Va.  Cas.  202. 

The  Supreme  Court  of  Illinois,  in  two  early  cases,  as  summarily  dis- 
missed writs  of  error  sued  out  by  the  state,  in  the  one  case  to  reverse 
a  judgment  of  acquittal  upon  exceptions  taken  at  a  trial  by  jury,  and 
in  the  other  to  reverse  a  judgment  reversing  for  want  of  jurisdiction 
a  conviction  before  a  justice  of  the  peace.  People  v.  Dill  (1836)  1 
Scam.  (111.)  257;  People  v.  Royal  (1839)  Id.  557. 

In  1848  a  writ  of  error  by  the  state  to  reverse  a  judgment  for  the 
defendant  on  a  demurrer  to  the  indictment  was  dismissed  by  the  Court 
of  x\ppeals  of  New  York,  upon  a  careful  review  by  Judge  Bronson  of 
the  English  and  American  authorities,  including  several  earlier  cases 
in  New  York  in  which  such  w^its  of  error  had  been  brought,  of  which 
the  court  said :  "But  in  none  of  the  cases  was  the  question  either  made 
by  counsel,  or  considered  by  the  court,  whether  the  people  could  prop- 
erly bring  error.  Such  precedents  are  not  of  much  importance." 
People  v.  Corning,  2  N.  Y.  9,  15,  49  Am.  Dec.  364.     That  decision 


394  APPEAL,  WRIT   OF   ERROR,  AND    CERTIORARI.  (Ch.  16 

has  been  since  recognized  and  acted  on  by  that  court,  except  so  far  as 
affected  by  express  statutes.  People  v.  Carnal,  6  N.  Y.  463  ;  People  v. 
Clark,  7  N.  Y.  385 ;  People  v.  Merrill,  14  N.  Y.  74,  76,  78 ;  People  v. 
Bork,  78  N.  Y.  346. 

In  1849  the  Supreme  Judicial  Court  of  Massachusetts,  speaking  by 
Chief  Justice  Shaw,  held  that  a  writ  of  error  did  not  lie  in  a  criminal 
case  in  behalf  of  the  commonwealth ;  and  therefore  dismissed  writs 
of  error  sued  out  to  reverse  judgments  upon  indictments  in  two  cases, 
in  one  of  which  the  defendant,  after  pleading  nolo  contendere,  had 
moved  in  arrest  of  judgment  for  formal  defects  in  the  indictment,  and 
thereupon  judgment  had  been  arrested  and  the  defendant  discharged, 
and  in  the  other  the  indictment  had  been  quashed  on  the  defendant's 
motion.  Com.  v.  Cummings  and  Same  v.  McGinnis,  3  Cush.  212,  50 
Am.  Dec.  732. 

In  the  same  year  the  Supreme  Court  of  Georgia  made  a  similar  de- 
cision, dismissing  a  writ  of  error  sued  out  by  the  state  upon  a  judgment 
quashing  an  indictment  against  the  defendant ;  and,  in  an  able  and 
well-considered  opinion  delivered  by  Judge  Nisbet,  said:  "The  rule 
seems  to  be  well  settled  in  England  that  in  criminal  cases  a  new  trial 
is  not  grantable  to  the  crown  after  verdict  of  acquittal,  even  though 
the  acquittal  be  founded  on  the  misdirection  of  the  judge.  This  is  the 
general  rule,  and  obtains  in  the  states  of  our  Union.  It  excludes  a  re- 
hearing after  acquittal  upon  errors  of  law,  and  therefore,  it  would 
seem,  denies  also  a  rehearing  upon  judgments  of  the  court  upon 
questions  of  law,  even  when  the  jury  have  not  passed  upon  the  guilt 
or  innocence  of  the  prisoner.  If  the  effect  of  the  judgment  is  a  dis- 
charge, there  can  be  no  rehearing,  either  by  new  trial  or  writ  of  error. 
Indeed  it  may  be  stated,  as  a  general  rule,  that  in  criminal  cases,  upon 
general  principles,  errors  are  not  subject  to  revision  at  the  instance  of 
the  state."  "These  principles  are  founded  upon  that  great  fundamental 
rule  of  the  common  law,  'Nemo  debet  bis  vexari  pro  una  et  eadem 
causa,'  which  rule,  for  greater  caution  and  in  stricter  vigilance  over  the 
rights  of  the  citizen  against  the  state,  has  been  in  substance  embodied 
in  the  Constitution  of  the  United  States,  thus :  'Nor  shall  any  person 
be  subject,  for  the  same  offense,  to  be  twice  put  in  jeopardy  of  life  or 
limb.'  "  After  observing  that  this  provision  of  the  Constitution  could 
have  no  direct  bearing  upon  that  case,  which  was  of  a  misdemeanor 
only,  and  in  which  there  had  been  no  trial  by  jury,  the  court  added: 
"The  common-law  maxim  and  the  Constitution  are  founded  in  the 
humanity  of  the  law,  and  in  a  jealous  watchfulness  over  the  rights  of 
the  citizen,  when  brought  in  unequal  contest  with  the  state.  It  is, 
doubtless,  in  the  spirit  of  this  benign  rule  of  the  common  law,  em- 
bodied in  the  federal  Constitution — a  spirit  of  liberty  and  justice, 
tempered  with  mercy — that,  in  several  of  the  states  of  this  Union,  in 
criminal  causes  a  writ  of  error  has  been  denied  to  the  state."  State 
V.  Jones,  7  Ga.  422,  424,  425. 


Ch.l6)  APPEAL,  WRIT   or   ERROR,  AND    CERTIORARI.  305 

The  Supreme  Court  of  Iowa,  in  1856,  ordered  a  writ  of  error  sued 
out  by  the  state,  after  the  defendant  had  been  acquitted  by  a  jury  to 
be  dismissed,  not  because  to  order  a  new  trial  would  be  against  article 
1,  §  12,  of  the  Constitution  of  the  state,  declaring  that  "no  person  shall 
after  acquittal  be  tried  for  the  same  offense"  (for  the  court  expressly 
waived  a  decision  of  that  question),  but  only  because  of  "there  being  no 
law  to  authorize  a  writ  of  error  on  the  part  of  the  state  in  a  criminal 
case."     State  v.  Johnson,  2  Iowa,  519. 

The  Supreme  Court  of  Wisconsin,  in  1864,  held  that  a  writ  of  error 
did  not  lie  in  behalf  of  the  state  to  reverse  a  judgment  in  favor  of  the 
defendant  upon  a  demurrer  to  his  plea  to  an  indictment.  State  v. 
Kemp,  17  Wis.  GGd.  The  Supreme  Court  of  Missouri,  in  1877,  made  a 
smiilar  decision,  overruling  earlier  cases  in  the  same  court.  State  v. 
Copeland,  65  Mo.  41)7.  And  the  Supreme  Court  of  Florida,  in  1881, 
held  that  the  state  was  not  entitled  to  a  writ  of  error  to  reverse  a  judg- 
ment quashing  an  indictment,  and  discharging  the  accused  State  v 
Burns,  18  Fla.  185. 

In  those  states  in  which  the  government  in  the  absence  of  any  statute 
expressly  giving  it  the  right,  has  been  allowed  to  bring  error,  or  appeal 
in  the  nature  of  error,  after  judgment  for  the  defendant  on  demurrer 
to  the  indictment,  motion  to  quash,  special  verdict,  or  motion  in  arrest 
of  judgment,  the  question  appears  to  have  become  settled  by  early 
practice  before  it  was  contested. 

In  North  Carolina  the  right  of  the  state  has  been  strictly  limited  to 
the  cases  just  enumerated,  and  has  been  denied  even  when  the  defend- 
ant was  discharged  upon  a  judgment  sustaining  a  plea  of  former  ac- 
quittal as  sufficient  in  law,  or  upon  a  ruling  that  there  was  no  legal 
prosecutor;  and  the  Supreme  Court  has  repeatedly  declared  that  the 
state's  right  of  appeal  in  a  criminal  case  was  not  derived  from  the  com- 
mon law,  or  from  any  statute,  but  had  obtained  under  judicial  sanction 
by  a  long  practice;  and  has  held  that  neither  article  4,  §  8,  of  the 
state  Constitution  of  1876,  giving  that  court  "jurisdiction  to  review 
upon  appeal  any  decision  of  the  courts  below  upon  anv  matter  of  law 
or  legal  inference,"  nor  article  4,  §  27,  of  the  same  Constitution,  pro- 
viding that  in  all  criminal  cases  before  a  justice  of  the  peace  "the  party 
against  whom  judgment  is  given  may  appeal  to  the  superior  court, 
where  the  matter  shall  be  heard  anew,"  gave  .any  right  of  appeal  to 
the  state,  but  only  to  the  defendant.  State  v.  Haddock  (1802)  3  N.  C. 
162;  State  v.  Lane  (1878)  78  N.  C.  547;  State  v.  Swepson  (1880) 
82  N.  C.  541;  State  v.  Moore  (1881)  84  N.  C.  724;  State  v.  Powell 
(1882)  86  N.  C.  640. 

The  Court  of  Appeals  of  Maryland,  in  1821,  sustained  a  writ  of 
error  by  the  state  to  reverse  a  judgment  in  favor  of  the  defendants  on 
demurrer  to  the  indictment,  citing  a  number  of  unreported  cases  decid- 
ed in  that  state  in  1793  and  1817.  State  v.  Buchanan,  5  Har.  &  J.  317, 
324,  330,  9  Am.  Dec.  534.     But  the  same  court,  in  1878,  refused  to 


39G  APPEAL,  WRIT   OF    ERROR,  AND    CERTIORARI.  (Ch.  IG 

construe  a  statute  of  1872,  providing  that  in  all  criminal  trials  it  should 
be  lawful  for  the  attorney  for  the  state  to  tender  a  bill  of  exceptions 
and  to  appeal,  as  authorizing  the  court,  on  such  exceptions  and  appeal, 
to  order  a  new  trial  after  a  verdict  of  acquittal.  State  v.  Shields,  49 
Md.  301. 

In  Louisiana,  in  the  leading  case,  the  court  admitted  that  to  allow 
the  state  to  bring  a  writ  of  error  in  a  criminal  case  was  contrary  to 
the  common  law  of  England,  to  the  law  of  most  of  the  states,  and  to 
the  general  opinion  of  the  bar;  and  the  later  cases  appear  to  be  put 
largely  upon  the  ground  that  the  practice  had  become  settled  by  a 
course  of  decision.  State  v.  Jones  (1845)  8  Rob.  (La.)  573,  574;  State 
V.  Elhs  (1857)  13  La.  Ann.  390;  State  v.  Ross  (1859)  14  La.  Ann. 
364;  State  v.  Taylor  (1882)  34  La.  Ann.  978;  State  v.  Robinson 
(1885)  37  La.  Ann.  673. 

The  Supreme  Court  of  Pennsylvania,  from  an  early  period,  occa- 
sionally entertained,  without  question,  writs  of  error  sued  out  by  the 
state  in  criminal  cases.  Com.  v.  Taylor  (1812)  5  Bin.  277;  Com.  v. 
McKisson  (1822)  8  Serg.  &  R.  420,  11  Am.  Dec.  630;  Com.  v.  Church 
(1845)  1  Pa.  105,  44  Am.  Dec.  112.  The  first  mention  of  the  question 
appears  to  have  been  in  a  case  in  which  the  only  objection  taken  to  the 
right  of  the  commonwealth  to  sue  out  a  writ  of  error  was  that  the  writ 
had  not  been  specially  allowed,  of  which  the  court  said :  "There  is 
nothing  in  the  disabling  provisos  of  the  statutes  to  limit  the  right 
of  the  commonwealth ;  and  the  powers  of  this  court,  whether  deduced 
from  the  common  law,  from  the  old  provincial  act  of  1722,  or  from 
legislation  under  our  state  Constitutions,  are  quite  competent  to  the  re- 
view of  any  judicial  record,  when  no  statutory  restraints  have  been  im- 
posed. It  would  be  very  strange  if  the  commonwealth  might  not  ap- 
peal to  her  own  tribunals  for  justice  without  the  special  consent  of 
certain  of  her  own  officers."  This  theory  that  the  state  may  sue  out 
a  writ  of  error,  unless  expressly  denied  it  by  statute,  is  opposed  to  the 
view  maintained  by  a  host  of  decisions  above  cited ;  and  it  is  observ- 
able that  such  judges  as  Judge  Thompson  and  Judge  Sharswood  were 
in  favor  of  quashing  writs  so  sued  out.  Com.  v.  Capp  (1864)  48  Pa. 
53,  56;   Com.  v.  Moore  (1882)  99  Pa.  570,  576. 

In  many  of  the  states,  indeed,  including  some  of  those  above  men- 
tioned, the  right  to  sue  out  a  writ  of  error,  or  to  take  an  appeal  in  the 
nature  of  a  writ  of  error,  in  criminal  cases,  has  been  given  to  the  state 
by  positive  statute.  But  the  decisions  above  cited  conclusively  show 
that  under  the  common  law,  as  generally  understood  and  administered 
in  the  United  States,  and  in  the  absence  of  any  statute  expressly  giving 
the  right  to  the  state,  a  writ  of  error  cannot  be  sued  out  in  a  criminal 
case  after  a  final  judgment  in  favor  of  the  defendant,  whether  that 
judgment  has  been  rendered  upon  a  verdict  of  acquittal,  or  upon  a 
determination  by  the  court  of  an  issue  of  law.  In  either  case,  the  de- 
fendant, having  been  once  put  upon  his  trial  and  discharged  by  the 


Ch.  IC)  APPEAL,  WRIT   OF    ERROR,  AND    CERTIORARI.  397 

court,  is  not  to  be  again  vexed  for  the  same  cause,  unless  the  legis- 
lature, acting-  within  its  constitutional  authority,  has  made  express 
provision  for  a  review  of  the  judgment  at  the  instance  of  the  govern- 
ment. 

[The  court  here  discussed  the  acts  of  Congress  and  cuniinued :] 
In  none  of  the  provisions  of  this  act,  ^^  defining  the  appellate  juris- 
diction, either  of  this  court  or  of  the  Circuit  Court  of  Appeals,  is  there 
any  indication  of  an  intention  to  confer  upon  the  United  States  the 
right  to  bring  up  a  criminal  case  of  any  grade  after  judgment  below  in 
favor  of  the  defendant.  It  is  impossible  to  presume  an  intention  on 
the  part  of  Congress  to  make  so  serious  and  far-reaching  an  innova- 
tion in  the  criminal  jurisprudence  of  the  United  States. 
Writ  of  error  dismissed  for  want  of  jurisdiction. 

11  Judiciary  Act  Marcli  3,  1891,  c.  517,  2G  Stat.  S20  (U.  S.  Comp.  St.  1001 
p.  547). 


398  PUNISHMENT.  (Ch.  17 

CHAPTER  XVII 
PUNISHMENT 


Punishment,  then,  is  an  orderly  execution  of  lawfull  judgement,  laid 
upon  an  offendour,  by  the  Minister  of  the  Law :  and  it  is  done  for  foure 
causes :  First,  for  the  amendment  of  the  offendour :  Secondly,  for 
example's  sake,  that  others  may  bee  thereby  kept  from  offending: 
Thirdly,  for  the  maintenance  of  the  authoritie  and  credite  of  the  per- 
son that  is  offended :  and  these  three  reasons  bee  common  to  all  such 
punishments.  Seneca  rehearseth  the  fourth  finall  cause,  that  is  to  say, 
that  (wicked  men  being  taken  away)  the  good  may  live  in  better 
security :  and  this  pertaineth  not  to  all,  but  to  capitall  punishments 
only,  as  every  man  may  at  the  first  hearing  understand. 

The  Romanes  used  especially  eight  sorts  of  Chastisements,  knowen 
to  them  by  these  names.  Damnum,  Vincula,  Verbera,  Talio,  Ignominia, 
Exilium,  Servitus,  Mors :  that  is,  Losse  of  goods,  Imprisonment, 
Stripes,  Retaliation,  Reproch,  Banishment,  Servitude,  and  Death :  all 
which,  our  L,aw  (before  the  Conquest)  was  wont  to  inflict,  albeit  that 
now  Servitude,  and  Retaliation  being  gone.  Banishment  is  almost  out 
of  use. 

The  Punishments  that  bee  commonly  put  in  execution  at  this  day, 
and  wherewith  the  Justices  of  the  Peace  have  to  doe,  they  be  divided 
into  Corporall,  Pecuniarie,  and  Infamous. 

Corporall  punishment,  is  either  Capitall,  or  not  Capitall.  Capitall  (or 
deadly)  punishment  is  done  sundry  wayes,  as  by  hanging,  burning, 
boiling,  or  pressing :  not  Capitall,  is  of  divers  sorts  also,  as  cutting  off 
the  hand  or  eare,  burning  (or  marking)  the  hand,  face,  or  shoulder, 
whipping,  imprisoning,  stocking,  setting  on  the  Pillory,  or  Cucking- 
stoole,  which  in  olde  time  was  called  the  Tumbrell.  Of  this  kind  of 
punishment,  our  old  Law  (making  precious  estimation  of  the  lives  of 
men)  had  moe  sorts  than  we  now  have:  as  pulling  out  the  tongue, 
for  false  rumours,  cutting  off  the  nose,  for  adultery,  taking  away  the 
privy  parts,  for  counterfeiting  of  money,  etc. 

Under  the  name  of  Pecuniary  punishment,  I  comprehend  all  Issues, 
Fines,  Amerciamets,  and  Forfeitures  of  Offices,  goods,  or  lands. 

And  if  the  Justices  of  Peace  may  by  vertue  of  their  Commission, 
deale  with  such  Conspirators  as  doe  confederate  together,  to  cause  any 
persons  unjustly  to  be  indicted  of  felony,  whereof  afterward  he  is  ac- 
quitted (as  some  doe  thinke  they  may)  then  is  there  a  speciall  punish- 
ment in  that  case  appointed  by  law,  which  in  24  E.  3,  73,  is  termed 
Villanous,  and  may  be  wel  called  Infamous,  because  the  judgment  in 
such  case  shall  be  hke  unto  the  ancient  judgment  in  attaint  (as  it  is  said 


Ch.  17)  PUNISHMENT.  ^UD 

4  H.  5,  Fitzh.  Judcrment,  220),  and  is  (in  27  Lib.  Ass.  pi.  59.)  set  downe 
to  bee,  that  their  Oathes  shall  not  bee  of  any  credit  after:  nor  lawful! 
for  them  in  person  to  approach  the  King's  Courts :  and  that  their  lands 
&  goods  be  seised  into  the  King's  hands:  their  trees  rooted  up,  and 
their  bodies  imprisoned  &c.  And  at  this  day,  the  punishment  ajjpointcd 
for  perjury  (having  somewhat  more  in  it  than  Corporall,  or  Pecuniary 
paine)  stretching  to  the  discrediting  of  the  testimony  of  the  offendour 
for  ever  after,  may  be  partaker  of  this  name. 
Lambard,  Eirenarcha,  bk.  1,  c.  12. 


FELTON'S  CASE. 

(Court  of  Commou  Bench,  1628.    Iletley.  12G.) 

Memorand.  quod  Thursday  29  die  November,  1628.  John  Felton 
was  arraigned  in  the  King's  Bench,  for  the  murder  of  George,  Duke 
of  Buckingham.  And  the  Justices  of  the  Common  Bench  demanded 
of  the  Serjeants  of  the  King,  who  were  present  in  the  King's  Bench, 
what  was  done  wath  Felton.  And  Ashley  answered.  That  he  had 
confessed  the  fact,  and  that  the  ordinary  sentence  of  death  was  given 
against  him.  But  they  marvelled  that  for  so  notorious  offence,  the 
sentence  was  not,  that  he  should  be  hanged  in  chains. 

YeIvVERTon.  That  any  other  sentence  than  the  ordinary  sentence 
cannot  be  given.  But  after  that  he  is  dead,  his  body  was  at  the  dis- 
position of  the  King,  which  was  not  denyed  by  the  other  Justices. 


TERRITORY  v.  KETCHUM. 

(Supreme  Court  of  New  Mexico,  1901.     10  N.  M.  71S,  65  Pac.  1G9.  55  L.  K. 

A.  90.) 

ParkUr,  J.  The  appellant  was  convicted  in  Union  county,  in  the 
Fourth  judicial  district,  under  section  1151  of  the  Compiled  Laws  of 
1897,  which  is  as  follows:  "If  any  person  or  persons  shall  willfully 
and  maliciously  make  any  assault  upon  any  railroad  train,  railroad 
cars,  or  railroad  locomotives  within  this  territory,  for  the  purpose 
and  with  the  intent  to  commit  murder,  robbery,  or  any  other  felony 
upon  or  against  any  passenger  on  said  train  or  cars,  or  upon  or 
against  any  engineer,  conductor,  fireman,  brakcman,  or  any  officer 
or  employe  connected  with  said  locomotive,  train  or  cars,  or  upon 
or  against  any  express  messenger,  or  mail  agent  on  said  train,  or 
in  any  of  the  cars  thereof,  on  conviction  thereof  shall  be  deemed 
guilty  of  a  felony  and  shall  suffer  the  punishment  of  death."  Judg- 
ment was  rendered  upon  the  verdict,  and  the  appellant  sentenced  to 


400  PUNISIIMEXT.  (Ch.  17 

* 

death  by  hanging,  as  provided  by  section  1067,  Id.  The  case  is  here  on 
appeal,  and  presents  the  single  question  whether  the  death  penalty,  as 
applied  to  this  offense,  is  a  cruel  and  unusual  punishment,  within  the 
prohibition  of  the  eighth  amendment  to  the  Constitution  of  the  United 
States. 

It  may  be  assumed  that  the  death  penalty,  in  a  proper  case,  is  not 
cruel,  within  the  prohibition  of  the  Constitution.  In  re  Kemmler, 
136  U.  S.  436,  10  Sup.  Ct.  930,  34  L.  Ed.  519.  And  it  is  a  matter 
of  common  knowledge  that  it  is  not  unusual ;  it  being  employed  in 
nearly  all  the  states,  as  well  as  by  the  United  States,  as  a  punishment 
for  crime.  But  it  is  contended  by  counsel  for  appellant  that  the  death 
penalty  is  such  an  excessive  punishment  in  degree  for  the  offense  of 
which  the  defendant  stands  convicted  as  to  be  within  the  prohibition 
of  the  Constitution.  Much  difficulty  has  been  expressed  by  both  courts 
and  text-writers  in  attempting  to  define  the  scope  of  this  constitu- 
tional provision.  Some  courts  have  thought  that  it  was  never  intended 
as  a  limitation  upon  legislative  discretion  in  determining  the  severity 
of  punishment  to  be  inilicted,  but,  rather,  refers  to  the  mode  of  in- 
fliction. Thus,  in  Aldridge  v.  Com.,  2  Va.  Cas.  447,  449,  it  is  said: 
"That  provision  was  never  designed  to  control  the  legislative  right 
to  determine  ad  libitum  upon  the  adequacy  of  punishment,  but  is 
merely  applicable  to  the  modes  of  punishment."  In  Com.  v.  Hitchings, 
5  Gray  (Mass.)  482,  486,  it  is  said:  "The  question  whether  the  punish- 
ment is  too  severe  and  disproportionate  to  the  offense,  is  for  the  Leg- 
islature to  determine."  In  Sturtevant  v.  Com.,  158  Mass.  598,  33 
N.  E.  648,  it  is  said :  "This  article  is  directed  to  courts,  not  to  the 
Legislature."  It  may  be,  however,  that  the  decisions  in  Massachusetts 
are  based  upon  the  peculiar  language  of  their  Constitution,  which 
is :  "No  magistrate  or  court  of  law  shall  demand  excessive  bail  or 
sureties,  impose  excessive  fines,  or  inflict  cruel  or  unusual  punish- 
ments." 

In  State  v.  Williams,  77  Mo.  310,  312,  it  is  said :  "The  interdict  of 
the  Constitution  against  the  infliction  of  cruel  and  unusual  punish- 
ments would  apply  to  such  punishments  as  amount  to  torture,  or 
such  as  would  shock  the  mind  of  every  man  possessed  of  common 
feeling — such,  for  instance,  as  drawing  and  quartering  the  culprit, 
burning  him  at  the  stake,  cutting  off  his  nose,  ears,  or  limbs,  starving 
him  to  death,  or  such  as  was  inflicted  by  an  act  of  parliament  as  late 
as  22  Hen.  VIII.,  authorizing  one  Rouse  to  be  thrown  into  boiling- 
water  and  boiled  to  death  for  the  offense  of  poisoning  the  family  of  the 
Bishop  of  Rochester.  *  *  *  jf^  under  the  statute  in  question 
[defining  and  providing  punishment  for  the  crime  of  obtaining  money 
under  false  pretenses],  a  punishment  by  imprisonment  for  life  of  one 
who  is  convicted  of  the  offense  therein  defined  should  be  inflicted, 
it  might  well  be  said  that  such  punishment  would  be  excessive,  or, 
rather,  entirely  disproportioned  to  the  magnitude  of  the  offense,  yet 
notwithstanding  this,  there  is  high  authority  for  saying  that  'the  ques- 


^^-  1^)  PUNISHMENT.  401 

tion  whether  the  punishment  is  too  severe  and  disproportionate  to  the 
offense  is  for  the  Legislature  to  determine.'  " 

In  People  v.  IMorris,  80  Mich.  634,  638,  4o  N.  \V.  591,  502,  8  L.  R. 
A.  685,  686,  it  is  said:  "The  difficulty  in  determining  what  is  meant 
by  'cruel  and  unusual  punishment,'  as  used  in  our  Constitution,  is  ap- 
parent. Counsel  for  defendants  claims  that,  as  properly  understood. 
it  means,  when  used  in  this  connection,  punishment  out  of  proportion 
to  the  offense.  If  by  this  is  meant  the  degree  of  punishment,  we 
do  not  think  the  contention  correct.  When  in  England,  concessions 
against  cruel  and  unusual  punishments  were  first  wrested  from  the 
crown,  slight  offenses  were  visited  with  the  most  extreme  punish- 
ment, and  no  protest  was  made  against  it."  In  Garcia  v.  Territory,  1 
N.  M.  415,  418,  this  court  said :  "The  word  'cruel,'  as  used  in  the 
amendatory  article  of  the  Constitution,  was,  no  doubt,  intended  to  pro- 
hibit a  resort  to  the  process  of  torture,  resorted  to  so  many  centuries 
as  a  means  of  extorting  confessions  from  suspected  criminals  under 
the  sanction  of  the  civil  law.  It  was  never  designed  to  abridge  or  limit 
the  selection  by  the  lawmaking  power  of  such  kind  of  punishment  as 
was  deemed  most  effective  in  the  punishment  and  suppression  of 
crime." 

This  provision  of  the  Constitution  was  before  the  Supreme  Court 
of  the  United  States  in  Wilkerson  v.  Utah,  99  U.  S.  130,  25  L.  Ed. 
345.  In  that  case  the  question  was  whether  a  judgment  directing  the 
infliction  of  the  death  penalty  by  shooting  was  cruel  and  unusual.  The 
court  said :  "Difficulty  would  attend  the  effort  to  define  with  exactness 
the  extent  of  the  constitutional  provision  which  provides  that  cruel 
and  unusual  punishments  shall  not  be  inflicted  ;  but  it  is  safe  to  affirm 
that  punishments  of  torture,  such  as  those  mentioned  by  the  commenta- 
tor referred  to  (4  Bl.  Comm.  377),  where  the  prisoner  was  drawn  or 
dragged  to  the  place  of  execution,  in  treason ;  where  he  was  embowel- 
ed alive,  beheaded,  and  quartered,  in  high  treason;  cases  of  public 
dissection,  in  murder;  and  of  burning  alive,  in  treason  committed  by 
a  female — and  all  others  in  the  same  line  of  unnecessary  cruelty,  are 
forbidden  by  that  amendment  to  the  Constitution." 

In  Re  Kemmler,  136  U.  S.  436,  10  Sup.  Ct.  930,  34  L.  Ed.  519. 
the  question  was  whether  the  method  adopted  by  the  New  York  stat- 
ute of  inflicting  the  death  penalty,  which  was  by  electrocution,  was 
cruel  and  unusual.  The  court  said:  "This  declaration  of  rights 
(Act  of  Parliament  of  1688 ;  1  Wm.  &  Mary,  c.  2)  had  reference  to 
the  acts  of  the  executive  and  judicial  departments  of  the  government 
of  England;  but  the  language  in  question,  as  used  in  the  Constitution 
of  the  state  of  New  York,  was  intended  particularly  to  operate  upon 
the  Legislature  of  the  state,  to  whose  control  the  punishment  of  crime 
was  almost  wholly  confided.  So  that,  if  the  punishment  prescribed 
for  an  offense  against  the  laws  of  the  state  were  manifestly  cruel  and 
unusual,  as  burning  at  the  stake,  crucifixion,  breaking  on  the  wheel,  or 
Mik.Ob.Pr.— 26 


402  PUNISHMENT.  (Ch.  17 

the  like,  it  would  be  the  duty  of  the  courts  to  adjudge  such  penalties 
to  be  within  the  constitutional  prohibition.  And  we  think  this  equally 
true  of  the  eighth  amendment,  in  its  application  to  congress.  *  *  * 
Punishments  are  cruel  when  they  involve  torture  or  a  lingering  death, 
but  the  punishment  of  death  is  not  cruel,  within  the  meaning  of  that 
word  as  used  in  the  Constitution.  It  implies  there  something  inhuman 
and  barbarous — something  more  than  the  mere  extinguishment  of 
life." 

It  is  true  that,  in  both  of  the  cases  quoted  from,  the  Supreme  Court 
had  before  them  for  consideration  not  the  question  of  the  severity  of 
a  punishment,  but  simply  the  question  of  the  method  of  inflicting  the 
death  penalty;  but  in  both  those  cases,  the  court  limit  the  meaning  of 
the  word  "cruel,"  as  used  in  the  Constitution,  to  something  which  in- 
volves torture.  If  this  be  the  test  in  all  cases,  then  it  must  be  clear  that 
legislative  discretion  in  determining  the  severity  of  punishment  for 
crime  is  not  to  be  interfered  with  by  the  courts,  so  long  as  all  forms  of 
torture  are  avoided.  In  1  Bish.  Cr.  Law,  §  947,  it  is  said :  "Evidently, 
in  reason,  the  punishments  commonly  inflicted  at  the  time  when  the 
Constitution  was  adopted  could  not  be  deemed  'unusual,'  and  no 
punishment  is  'cruel'  simply  because  it  is  severe,  or  'cruel  and  unusual' 
because  it  is  disgraceful.  But  mere  torture,  however  slight,  would  be 
within  the  prohibition."  Mr.  Tiedeman,  in  his  work  on  Limitations  of 
Police  Power  (page  21),  says :  "But  would  the  infliction  of  capital 
punishment  for  offenses  not  involving  the  violation  of  the  right  to  life 
and  personal  security  be  such  a  'cruel  and  unusual  punishment'  as  that 
it  would  be  held  to  be  forbidden  by  this  constitutional  provision?  It 
would  seem  to  me  that  the  imposition  of  the  death  penalty  for  the  vio- 
lation of  the  revenue  laws  (i,  e.,  smuggling),  or  the  illicit  manufacture 
of  liquors,  or  even  for  larceny  or  embezzlement,  would  properly  be  con- 
sidered as  prohibited  by  this  provision,  as  being  'cruel  and  unusual.' 
But,  if  such  a  construction  prevailed,  it  would  be  difficult  to  determine 
the  limitations  to  the  legislative  discretion." 

It  would,  indeed,  seem  to  be  a  matter  of  great  doubt,  in  view  of  the 
foregoing  expressions  of  opinion  on  this  subject,  whether  the  courts, 
in  any  case,  have  the  power  to  review  legislative  discretion  in  deter- 
mining the  severity  of  punishment  for  crime,  so  long  as  all  forms  of 
torture  have  been  avoided.  Judge  Cooley,  however,  in  his  work  on 
Constitutional  Limitations,  draws  a  distinction  which  seems  not  to  have 
been  usually  recognized.  He  says :  "It  is  certainly  difficult  to  deter- 
mine precisely  what  is  meant  by  'cruel  and  unusual  punishments.' 
Probably  any  punishment  declared  by  statute  for  an  offense  which 
was  punishable  in  the  same  way  at  the  common  law  could  not  be 
regarded  as  cruel  or  unusual,  in  the  constitutional  sense.  And  probably 
any  new  statutory  offense  may  be  punished  to  the  extent  and  in  the 
mode  permitted  by  the  common  law  for  offenses  of  similar  nature. 
But  those  degrading  punishments  which  in  any  state  had  become  obso- 
lete before  its  existing  Constitution  was  adopted!,  we  think,  may  well  be 


Cll.  17)  rUXlSlIMKNT,  40o 

held  forbidden  by  it,  as  cruel  and  unusual."  Cooley,  Const.  Lini.  (3d 
Ed.)  329.  If  we  understand  the  language  of  the  learned  author,  a 
punishment  provided  by  statute  for  an  offense,  of  a  kind  as,  for  ex- 
ample, death  by  hanging,  or  imprisonment,  is  not  prohibited  by  the 
constitutional  provision,  if  at  common  law  a  like  kind  of  punishment 
was  authorized  for  offenses  of  a  similar  nature. 

If  this  be  the  test,  then  it  is  clear  that  the  penalty  prescribed  in  the 
case  at  bar  is  within  the  rule  laid  down ;  for  assault  with  intent  to  rob 
was  a  felony  at  common  law,  or  at  least  was  made  so  bv  St.  7  Geo.  2,  c. 
21  (1  Jac.  Diet.  tit.  "Assault";  1  Hawk.  P.  C.  c.  15,' p.  113),  and  as 
such  punishable  with  death,  unless  otherwise  provided  by  statute  (1 
Jac.  Diet.  tit.  "Felony" ;  1  Bish.  Cr.  Law,  §  1)3:)).  It  is  thought,  how- 
ever, by  some  of  the  courts,  that  the  constitutional  provision  under 
consideration  is  broad  enough  to  confer  upon  the  court  the  power  to 
review  legislative  discretion  concerning  the  adequacy  of  punishment. 
Thus,  in  State  v.  Becker,  3  S.  D.  29,  41,  51  N.  W.  1018.  1022,  it  is  said : 
"It  is  a  very  noticeable  fact  that  this  question  has  seldom  been  pre- 
sented to  the  courts,  and  we  take  this  fact  to  signify  that  it  has  been 
the  common  understanding  of  all  that  courts  would  not  be  justified 
in  interfering  with  the  discretion  and  judgment  of  the  Legislature, 
except  in  very  extreme  cases,  where  the  punishment  proposed  is  so 
severe  and  out  of  proportion  to  the  offense  as  to  shock  public  senti- 
ment and  violate  the  judgment  of  reasonable  people."  This  doctrine 
has  been  recognized  in  a  number  of  cases,  some  of  which  we  cite : 
In  re  MacDonald,  4  Wyo.  150,  33  Pac.  18 ;  In  re  Bayard,  63  How. 
Prac.  (N.  Y.)  73,  76;  Thomas  v.  Kinkead,  55  Ark.  502,  IS  S.  W. 
854,  15  L.  R.  A.  558,  29  Am.  St.  Rep.  68.  See,  also,  State  v.  Driver, 
78  N.  C.  423 ;  also  dissenting  opinions  of  Justices  Field,  Harlan,  and 
Brewer  in  O'Neil  v.  Vermont,  144  U.  S.  323,  12  Sup.  Ct.  693,  36 
L.  Ed.  450. 

While  we  have  arrived  at  a  conclusion  that  the  discretion  of  the 
Legislature  in  determining  the  adequacy  of  the  punishment  for  crime 
is  almost,  if  not  quite,  unlimited,  yet  such  a  conclusion  is  entirely  un- 
necessary to  an  affirmance  of  tb.is  judgment.  Assuming,  for  the  sake 
of  argument,  that  the  courts  may,  in  extreme  cases,  review  the  dis- 
cretion of  the  Legislature  in  determining  the  severity  of  punishment, 
still  we  see  no  reason  Avhy  this  statute  under  consideration  should  be 
lield  to  be  unconstitutional  by  reason  of  its  severity.  The  act  under 
which  the  defendant  was  convicted  was  passed  in  1887.  and  has  been 
upon  the  statute  books,  unchallenged  by  the  people  of  the  territory, 
ever  since  that  time.  It  has  evidently  met  with  the  approval  of  the 
people,  and  has  not  been  deemed  by  them  cruel  on  account  of  its  sever- 
ity. It  is  hardly  necessary  to  recall  the  incidents  attending  the  ordi- 
nary train  robbery,  which  are  a  matter  of  common  history,  to  assure 
every  one  that  the  punishment  prescribed  by  this  statute  is  a  most  salu- 
tary provision,  and  eminently  suited  to  the  offense  which  it  is  designed 
to  meet.    Trains  are  robbed  by  armed  bands  of  desperate  men,  deter- 


404  PUNISHMENT.  (Ch.  17 

mined  upon  the  accomplishment  of  their  purpose ;  and  nothing  will 
prevent  the  consummation  of  their  design — not  even  the  necessity  to 
take  human  life.  They  commence  their  operations  by  overpowering 
the  engineer  and  fireman.  They  run  the  train  to  some  suitable  local- 
ity. They  prevent  the  interference  of  any  person  on  the  train  by  in- 
timidation or  by  the  use  of  deadly  weapons,  and  go  so  far  as  to  take 
human  life  in  so  preventing  that  interference.  They  prevent  any  per- 
son from  leaving  the  train  for  the  purpose  of  placing  danger  signals 
upon  the  track  to  prevent  collisions  with  other  trains,  thus  willfully 
and  deliberately  endangering  the  life  of  every  passenger  on  board.  If 
the  express  messenger  or  train  crew  resist  their  attack  upon  the  cars, 
they  promptly  kill  them.  In  this  and  many  other  ways  they  display 
their  utter  disregard  of  human  life  and  property,  and  show  that  they 
are  outlaws  of  the  most  desperate  and  dangerous  character. 

In  the  case  at  bar,  while  the  record  of  the  testimony  is  not  before 
us,  it  is  a  matter  of  current  history  that,  while  he  was  the  lone  robber, 
the  defendant  shot  the  mail  clerk  through  the  face,  and  the  conductor 
through  the  arm,  and  only  desisted  from  his  attack  upon  the  train 
when  he  was  shot  through  the  arm  by  the  conductor.  His  manner 
of  conducting  this  business  of  train  robbery  was  but  a  sample  of  what 
is  being  done  by  those  engaged  in  that  business  in  all  parts  of  the 
country,  except  that  he  undertook  the  business  single-handed.  It 
is  true  that  this  statute  makes  an  attempt  at  train  robbing  the  offense 
for  Avhich  the  death  penalty  is  to  be  inflicted.  It  is  also  true  that  in 
this  case  the  offense  of  the  defendant  was  but  an  attempt,  he  having 
failed  to  accomplish  his  purpose.  Ordinarily  the  death  penalty  for 
an  attempt  to  commit  an  act  would  be  a  most  severe  punishment ;  but, 
taking  into  consideration  all  the  circumstances  usually  attending  a 
train  robbery  or  an  attempted  train  robbery,  we  cannot  say  that  we 
deem  the  death  penalty  in  any  degree  excessive,  as  compared  with  the 
gravity  of  the  oiTense,  if  the  death  penalty  is  to  be  inflicted  for  any 
violation  of  the  criminal  laws. 

We  conclude,  therefore,  that  the  statute  in  question  is  not  in  viola- 
tion of  the  eighth  amendment  to  the  Constitution  of  the  United  States, 
and,  there  being  no  error  in  the  record,  the  judgment  of  the  lower 
court  will  be  affirmed,  and  the  judgment  and  sentence  of  the  district 
court  shall  be  executed  on  Friday,  March  22,  A.  D.  1901 ;  and  it  is 
so  ordered.^ 


1  The  provisions  of  tlie  Philippine  Penal  Code,  under  which  the  falsifica- 
tion by  a  public  official  of  a  public  and  official  document  is  punished  by  fine 
and  Imprisonment  at  hard  and  painful  labor  for  a  period  ranging  from  twelve 
years  and  a  day  to  twenty  years,  the  prisoner  being  subject,  as  accessory  to 
the  main  punishment  to  carrying,  during  his  imprisonment,  a  chain  at  the 
ankle,  hanging  from  the  wrist,  to  deprivation  during  the  term  of  Imprison- 
ment of  civil  rights,  and  to  i>erpetual  absolute  disqualification  to  enjoy  polit- 
ical rights,  etc.,  and  to  surveillance  ot  the  authorities  during  life,  is  cruel 
and  unusual  punisliment,  within  the  terms  of  the  Philippine  Bill  of  Rights. 
Weems  v.  U.  S.,  217  U.  S.  349,  30  Sup.  Ct.  544,  54  L.  Ed.  (1909). 


Ch.  17)  PUNISHMENT.  405 

PEOPLE  ex  rel.  BRADLEY  v.  SUPERINTENDENT,  ETC.,  OF 
ILLINOIS  STATE  REFORMATORY. 

(Supreme  Court  of  Illinois,  1894.     148  111.  413,  36  N.  E.  7G.  23  L.  R.  A.  13ft.  i 

Baker,  C.  J.  A  writ  of  habeas  corpus  was  issued  herein  by  orckr 
of  this  court,  upon  the  petition  of  Tida  Bradley,  for  the  purpose  of 
inquiring  into  the  cause  of  the  imprisonment  and  detention  of  Josei)h 
Bradley  and  Harry  Justice  in  the  Illinois  State  Reformatory  at  I'onti- 

The  return  to  the  writ  showed  that  Joseph  Bradley  and  Harry  Ju>- 
tice,  being  of  the  age  of  eighteen  and  twenty  years  respectively,  had. 
on  conviction  of  burglary  and  larceny,  been  sentenced  by  the  court  to 
be  confined  in  the  State  Reformatory  "during  a  term  of  commitment 
to  be  terminated  by  the  board  of  managers  of  said  Illinois  State  Re- 
formatory." ^ 

It  is  admitted  by  the  relator  that  the  judgment  and  sentence  of  the 
court  was  in  accordance  with  the  provisions  of  the  statute,  since  the 
statute  requires  that  every  sentence  to  the  reformatory  of  a  person  be- 
tween the  ages  of  16  and  21  years,  convicted  of  a  felony  or  other 
crime,  shall  be  a  general  sentence  to  imprisonment  in  the  Illinois  State 
Reformatory,  that  the  courts  imposing  the  sentence  shall  not  fix  or 
limit  the  duration  thereof,  and  that  the  term  of  imprisonment  shall  be 
terminated  by  the  board  of  managers,  as  authorized  by  the  act. 

It  is  insisted,  however,  that  as,  by  the  judgment  and  warrant  of 
commitment,  the  imprisonment  was  not  for  a  specified  time,  but  "to  be 
terminated  by  the  board  of  managers  of  the  Illinois  State  Reforma- 
tory," the  judgment  and  mittimus  were  void  for  uncertainty,  and  that 
the  statute  which  makes  provision  for  such  a  judgment  is  unconsti- 
tutional and  invalid ;  and  in  that  behalf  reliance  is  placed  upon  the 
case  of  People  v.  Pirfenbrink,  96  111.  6S,  where  it  was  held  that  all 
judgments  must  be  specific  and  certain,  and  must  determine  the  rights 
recovered  or  the  penalties  imposed. 

We  think  that  the  judgment  and  mittimus  in  this  case  must  be  read 
and  interpreted  in  the  light  of,  and  under  the  restrictions  imposed  by. 
the  statute  upon  which  they  are  based.  That  statute  provides  that 
although  the  sentence  is  a  general  sentence  to  imprisonment,  yet  that 
"such  imprisonment  shall  not  exceed  the  maximum  term  provided  by 
law  for  the  crime  for  which  the  prisoner  was  convicted  and  sen- 
tenced." This  provision,  and  others  of  like  import,  being  read  into 
the  judgment  and  mittimus,  we  think  that  it  should  be  regarded  that 
the  judgment  and  commitment  in  this  case  was  for  20  years,  that  be- 
ing the  maximum  term  provided  by  law  for  the  crime  of  burglary. 
The  fact  that  the  prisoners  might,  in  accordance  with  the  provisions 

2  Part  of  the  opinion  is  omitted,  and  this  statement  is  substituted  for  thai 
in  the  report. 


406  PUNISHMKXT.  (Ch.  17  j, 

of  the  act,  be  sooner  discharged  by  an  order  of  court,  predicated  up- 
on the  recommendation  of  the  board  of  managers  of  the  reformatory, 
or  by  the  pardon  or  commutation  of  the  governor,  would  not  have 
the  effect  of  rendering  the  sentence  and  commitment  uncertain  and 
indefinite.  It  follows  that  it  is  provided  by  the  statute,  and  by  the 
judgment  and  commitment  herein,  for  w^hat  period  of  time  Joseph 
Bradley  and  Harry  Justice  are  to  be  detained  in  the  reformatory. 

It  is  insisted  that,  even  if  this  be  so,  yet  the  punishment  is  not  pro- 
portioned to  the  offense  committed,  and  that  the  statute  is  in  vio- 
lation of  that  portion  of  section  11  of  article  2  of  the  Constitution  of 
the  state  which  declares  that  "all  penalties  shall  be  proportioned  to  the 
nature  of  the  offense."  In  2  Blackstone's  Commentaries,  book  4,  § 
12,  it  is  said :  "The  method  of  inflicting  punishment  ought  always 
to  be  proportioned  to  the  particular  purpose  it  is  meant  to  serve,  and 
by  no  means  to  exceed  it."  And  it  is  there  also  said:  "The  quantity 
of  punishment  can  never  be  absolutely  determined  by  any  standing, 
invariable  rule,  but  it  must  be  left  to  the  arbitration  of  the  Legislature 
to  inflict  such  penalties  as  are  warranted  by  the  laws  of  nature  and 
society,  and  such  as  appear  to  be  best  calculated  to  answer  the  end  of 
prevention  against  future  offenses."  In  fact,  the  object  of  punish- 
ment is  the  prevention  of  future  offenses;  and  such  object  is  to  be 
attained  in  three  w-ays — by  the  amendment  of  the  offender  himself,  by 
deterring  others  through  his  example,  and  by  depriving  the  guilty 
party  of  the  power  to  do  further  mischief.  Id.  pp.  11,  12;  4  Am.  & 
Eng.  Enc.  Law,  721.  Imprisonment  is  not  a  cruel  and  unusual  pun- 
ishment for  burglary  or  larceny,  or  other  crime,  and  on  that  ground 
to  be  regarded  as  disproportioned  to  the  nature  of  the  offense.  4  Am. 
&  Eng.  Enc.  Law',  p.  722,  and  authorities  cited  in  notes.  The  term 
of  the  imprisonment,  if  it  does  not  extend  to  perpetual  imprisonment, 
is  to  a  great  extent,  if  not  altogether,  a  matter  of  legislative  discretion. 
For  very  many  years  the  statute  of  this  state  has  been  such  that  the 
punishment  for  burglary  might  extend  to  a  term  of  imprisonment  of 
20  years,  and  the  validity  of  such  statute  has  not  been,  and  could  not 
successfully  be,  called  in  question.  And,  even  if  the  statute  fixing  the 
punishment  for  burglary  was  such  as  that  it  imposed  an  absolute  pen- 
alty of  20  years'  imprisonment  upon  every  conviction  for  such  crime, 
its  validity  could  not,  on  that  ground,  be  impeached. 

When  the  Legislature  has  authorized  a  designated  punishment  for 
a  specified  crime,  it  must  be  regarded  that  its  action  represents  the 
general  moral  ideas  of  the  people,  and  the  courts  will  not  hold  the 
punishment  so  authorized  as  either  cruel  and  unusual  or  not  propor- 
tioned to  the  nature  of  the  offense,  unless  it  is  a  cruel  or  degrading 
punishment,  not  known  to  the  common  law,  or  is  a  degrading  punish- 
ment which  had  become  obsolete  in  the  state  prior  to  the  adoption  of 
its  Constitution,  or  is  so  wholly  disproportioned  to  the  offense  com- 
mitted as  to  shock  the  moral  sense  of  the  community.  See  In  re  Bay- 
ard, 25  Hun,  546.    Neither  the  infliction  of  20  years'  imprisonment  for 


Ch.  17)  PUNISHMENT.  407 

the  crime  of  burglary,  nor  the  infliction,  for  the  violation  of  any  pro- 
vision of  the  Criminal  Code,  of  the  maximum  quantity  of  the  usual 
punishment  for  such  violation,  falls  within  either  of  these  categories. 
We  think  that,  from  the  fact  that  the  statute  here  in  question  imposes 
the  maximum  term  of  imprisonment  provided  by  law  for  the  crime 
tor  which  the  prisoner  is  convicted,  it  does  not  follow  that  such  stat- 
ute is  in  violation  of  the  constitutional  requirement  that  all  penalties 
shall  be  proportioned  to  the  nature  of  the  offense. 

Nor  is  it  true  that  a  prisoner  on  trial  for  burglary  and  larceny,  or 
for  any  other  violation  of  the  criminal  law,  has  a  constituticjnal  right 
to  have  the  quantity  of  his  punishment  fixed  by  a  jury.  At  common 
law  the  jury  either  returned  a  special  verdict,  setting  forth  all  tiie 
circumstances  of  the  case,  and  praying  the  judginent  of  the  court 
thereon,  or  a  general  verdict  of  guilty  or  not  guilty.  The  punishment 
was  fixed  by  the  court,  and  governed  by  the  laws  in  force.  2  VA. 
Comm.  bk.  4,  p.  361.  And  in  this  state,  and  at  the  present  time,  the 
penalties  for  violations  of  the  Criminal  Code  are,  in  many  cases,  not 
fixed  by  the  jury,  but  by  the  court.  Rev.  St.  p.  r)34,  §§  -I-IG,  447.  et 
seq.  The.  constitutional  right  of  trial  by  jury  is  limited  to  the  trial  of 
the  question  of  guilt  or  innocence,  and  we  think  there  can  be  no  ques- 
tion of  the  validity  of  the  sections  of  the  statute  to  which  we  have 
made  reference  in  this  connection.  In  the  event  that  a  man  of  adult 
years  commits  the  crime  of  burglary,  he  may  be  imprisoned  in  the 
penitentiary  for  a  term  not  less  than  1  year,  nor  more  than  20  years, 
and,  if  he  pleads  not  guilty,  then  the  jury  say  in  their  verdict  for  what 
length  of  time,  wathin  the  limits  fixed  by  the  statute,  he  shall  be  con- 
fined in  the  penitentiary.     Crim.  Code,  §§  36,  444. 

It  is  provided,  in  substance,  in  sections  10,  12,  and  13  of  the  statute 
now  under  consideration,  that  if  a  minor  between  the  ages  of  16  and 
21  years  commits  such  crime,  and  has  not  previously  been  sentenced 
to  a  penitentiary,  then  the  jury  shall  not  fix  the  punishment,  but  his 
sentence  shall  be  a  general  sentence  to  imprisonment  in  the  state  re- 
formatory, the  effect  of  which  shall  be  imprisonment  in  such  reforma- 
tory for  the  maximum  term  provided  by  law  for  the  crime,  i.  e.,  for 
20  years,  unless  such  imprisonment  is  sooner  terminated  by  the  board 
of  managers  of  the  reformatory  in  the  manner  authorized  by  the  act. 
In  other  words,  the  adult  has  the  statutory  right  to  have  the  question 
submitted  to  the  decision  of  a  jury  whether  his  term  of  imprisonment 
shall  be  1  year,  or  some  other  space  of  time,  to  be  fixed  by  them,  and 
not  exceeding  20  years,  while  for  the  same  offense,  and  under  like 
circumstances,  the  minor  is  necessarily  sentenced  to  imprisonment  for 
20  years,  the  maximum  term  provided  by  law  for  tlie  offense. 

Is  there  such  inequality  and  injustice  in  this  as  that  it  can  be  re- 
garded that  the  penalty  imposed  upon  the  minor  is  not  proportioned  to 
the  nature  of  the  offense  of  which  he  is  convicted?  There  is  in  the 
law  of  nature,  as  well  as  in  the  law  that  governs  society,  a  marked  dis- 
tinction between  persons  of  mature  age  and  those  who  are  minors— 


408  PUNISHMENT.  (Ch.  17 

the  habits  and  characters  of  the  latter  are  presumably,  to  a  large  ex- 
tent, as  yet  unformed  and  unsettled.  This  distinction  may  well  be 
taken  into  consideration  by  the  legislative  power  in  fixing  the  pun- 
ishment for  crime,  both  in  determining  the  method  of  inflicting  pun- 
ishment, and  in  limiting  its  quantity  and  duration.  An  adult  convicted 
of  burglary  would  be  sentenced  to  the  penitentiary,  and  to  either  soli- 
tary confinement  or  hard  labor  therein ;  and  the  statute  which  con- 
signs him  to  such  punishment  must  be  regarded  as  highly  penal.  A 
minor,  however,  instead  of  being  sentenced  to  solitary  confinement  or 
hard  labor  in  a  penitentiary,  is  committed  to  the  state  reformatory. 
The  general  scope  and  humane  and  benign  purpose  of  the  statute  es- 
tablishing the  reformatory  is  clearly  indicated  by  the  following  pro- 
visions, found  in  section  6 :  "It  shall  be  the  duty  of  the  managers  to 
provide  for  the  thorough  training  of  each  and  every  inmate  in  the 
common  branches  of  an  English  education ;  also  in  such  trade  or 
handicraft  as  will  enable  him  upon  his  release  to  earn  his  own  support. 
For  this  purpose  said  managers  shall  establish  and  maintain  common 
schools  and  trade  schools  in  said  reformatory,  and  make  all  needful 
rules  and  regulations  for  the  government  of  the  same."  And  such 
beneficent  purpose  is  also  shown  by  the  provision  in  section  8,  that 
the  general  superintendent  of  the  institution  shall  have  charge  of  its 
inmates,  and  shall  discipline,  govern,  instruct,  employ,  and  use  his 
best  efforts  to  reform  tliem  ;  and  numerous  other  provisions  of  like 
tendency  and  effect  are  to  be  found  in  the  act,  such  as  those  for  the 
releasing  of  prisoners  upon  parole,  where  arrangements  have  been 
made  for  honorable  and  useful  employment  in  some  suitable  employ- 
ment, and  for  the  final  discharge  of  prisoners  from  further  liability 
under  their  sentences,  etc. 

It  is  manifest  that  the  sentences'  provided  for  in  the  statute  estab- 
lishing the  reformatory,  although  to  be  regarded  as  punishments  for 
crime,  are  not  of  so  purely  a  penal  character  as  those  imposed  upon 
adults  convicted  of  like  oft'enses;  but  that  the  primary  object  of  the 
statute  is  the  reformation  and  amendment  of  those  committed  to  the 
reformatory.  It  follows,  therefore,  that  the  case  of  an  adult  liable 
to  be  sentenced  to  the  penitentiary  for  the  crime  of  burglary  for  a 
term  of  not  less  than  1,  nor  more  than  20,  years,  is  not  parallel  to  that 
of  a  minor  required  to  be  sentenced  to  the  state  reformatory  for  a 
term  of  20  years  for  the  like  offense,  and  that  no  comparison  can  be 
instituted  between  them,  and  conclusion  arrived  at  therefrom  that  the 
penalty  imposed  upon  the  minor  is  not  proportioned  to  the  nature  of 
the  oft'ense  of  which  he  is  convicted.  Upon  full  consideration  we  find 
no  just  ground  for  holding  that  the  act  establishing  the  reformatory  is 
in  conflict  with  section  11  of  article  2  of  the  Constitution  of  this 
state.     *     >i<     * 

We  are  unable  to  arrive  at  the  conclusion  that  either  Joseph  Brad- 
ley or  Harry  Justice  is  wrongfully,  illegally,  or  without  warrant  of 
law  imprisoned  and  deprived  of  his  liberty  in  the  Illinois  State  Re- 


Ch.  17)  PUNISHMKXT.  409 

formatory  at  Pontiac;  and  they  are  therefore  remamled  to  the  cus- 
tody of  the  constituted  authorities  of  said  reformatory,  and  the  writ 
of  habeas  corpus  herein  is  dismissed,  at  the  cost  of  the  petitioner. 
Writ  dismissed.^ 

Shope  and  Magruder,  JJ.,  dissent. 

3  The  court  also  held  that  the  judsinont  was  not  void  for  um-.i  ,.,,,m.>  .  as 
the  judgment  taken  in  connection  with  tho  staduo.  which  i»r«>\id<Ml  th:ii 
"such  imprisonment  shall  not  exceed  the  maximum  term  provided  hy  law  fur 
the  crime  for  which  the  prisoner  was  convicted  and  seutoncetl."  fixed  tin* 
term  of  imprisonment.  The  court  held,  also,  that  the  statute  was  not  uncoji- 
stitutloual,  as  infringing  the  right  of  trial  by  jury,  because  it  provided  thai 
the  punishment  should  be  assessed  by  the  court,  instead  of  bv  the  jurv. 

In  Miller  v.  State.  149  Ind.  607.  4!)  N.  E.  804,  40  L.  R.  A.  10r>  (18o's),  a  simi- 
lar statute  was  held  not  to  provide  for  cruel  and  unusual  i)unishmeiit.  A 
similar  statute  was  held  unconstitutional  in  People  v.  Cummings,  8S  Mich.  249. 
50  N.  W.  310,  14  L.  R.  A.  285  (1891). 

The  fact  that  a  statute  does  not  fix  a  maximum  fine  for  Its  violation  does 
not  render  it  obnoxious  to  a  constitutional  provision  prohibiting  the  imposi- 
tion of  excessive  fines.    In  re  Yell,  107  Mich.  228,  05  N.  W.  97  (1895). 


I 


APPENDIX 


FORMS  OF  INDICTMENTS 

Indictment  for  M tinier  at  Coiiiinoii  Laiv. 

State  of -,  County  of ss. 

At  the court  holden  at ' — ,  in  and  for  the 

county  of .  on  the  second  ]\Ionday  of  April  in  the  year 

of  our  Lord  one  thousand  nine  hundred  and  ten.  the  jurors  of  the 

State  of  ■ ,  upon  their  oath  present  tliat  A.   R..  late  of 

,    in    the    county    of ,    in    the    State    of 

,  gentleman,  not  having  the  fear  of  God  before  his  eyes, 

but  being  moved  and  seduced  by  the  instigation  of  the  devil,  on  the 

day   of ,   in  the  year  of  our  Lord  one 

thousand  nine  hundred  and  ten,  at  ,  in  the  county  of 

,  in  and  upon  one  C.  D.,  in  the  peace  of  the  State  then 

and  there  being,  feloniously,  willfully,  and  of  his  malice  afore- 
thought did  make  an  assault,  (*)  and  that  the  said  A.  B.  with  a 
certain  drawn  sword  made  of  iron  and  steel,  of  the  value  of  five 
dollars,  which  he,  the  said  A.  B.,  in  his  right  hand  then  and  there  had 
and  held,  him,  the  said  C.  D.,  in  and  upon  the  left  side  of  the  belly 
of  him,  the  said  C.  D.,  then  and  there  feloniously,  willfully,  and  of  his 
malice  aforethought  did  strike,  thrust,  stab,  and  penetrate,  giving  un- 
to the  said  C.  D.  then  and  there,  with  the  sword  drawn  as  afore- 
said, in  and  upon  the  left  side  of  the  belly  of  him,  the  said  C.  D.,  one 
mortal  wound,  of  the  breadth  of  one  inch,  and  the  depth  of  nine  inch- 
es ;  of  which  said  mortal  wound  he,  the  said  C.  D..  at.  etc.,  aforesaid, 
from  the  said,  etc.,  until,  etc.,  did  languish,  and  languishing  did  live, 
on  which  said,  etc.,  the  said  C.  D.,  at,  etc.,  aforesaid,  of  the  said  mor- 
tal wound  did  die;  and  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say  that  the  said  A.  B.  him,  the  said  C.  D..  in  the  manner 
and  by  the  means  aforesaid,  feloniously,  willfully,  and  of  his  malice 
aforethought  did  kill  and  murder,  against  the  peace  and  dignity  of 
the  State  of .^ 

1  The  followiii;;  fi>rnis  of  indictiiionts  are  either  copied  or  MdMpteil  from  tlio 
forms  in  3  Chitty,  Gi".  Lwiw.     For  shorter  forms,  tlie  student  is  referred  to 
Bishop,  Dir.  &  Forms,  and  to  statutes  (jf  the  several  states. 
Mik.Cr.Pb.  (411) 


412  APPENDIX. 

Indictment  for  Manslaughter. 

[As  in  murder  to  (*),  omitting  the  words  "malice  aforethought"]^ 
in  the  highway,  and  a  certain  cart,  of  the  value  of  fifty  dollars,  then 
and  there  drawn  by  two  horses,  of  the  value  of  one  hundred  dollars, 
which  he,  the  said  A.  B.,  was  then  and  there  driving  in  and  along 
the  said  highway,  in  and  against  the  said  C.  D.  feloniously  did  force 
and  drive,  and  him,  the  said  C.  D.,  did  thereby  then  and  there  throw 
to  and  upon  the  ground,  and  did  then  and  there  feloniously  force  and 
drive  one  of  the  wheels,  to  wit,  the  off  wheel  of  the  said  cart,  against, 
upon,  and  over  the  head  of  him,  the  said  C.  D.,  then  lying  upon  the 
ground,  and  thereby  did  then  and  there  give  to  the  said  C.  D.  in  and 
upon  his  head  one  mortal  fracture  and  contusion,  of  which  the  said 
C.  D.  then  and  there  instantly  died.  And  so  the  jurors,  etc.,  do  say 
that  the  said  A.  B.  him,  the  said  C.  D.,  in  manner  and  by  the  means 
aforesaid,  feloniously  did  kill  and  slay,  against  the  peace,  etc. 

Indictment  for  an  Attempt  to  Murder. 

The  jurors,  etc.,  that  A.  B.,  etc.,  being  a  person  of  a  wicked  mind 
and  disposition,  and  maliciously  intending  to  poison  one  C.  D.,  of, 
etc.,  aforesaid,  on,  etc.,  did  knowingly,  willfully,  and  maliciously  put 
a  large  quantity  of  corrosive  mercury  sublimate  (being  a  deadly  poi- 
son) into  a  teakettle  filled  with  water,  which  water  he,  the  said  C.  D., 
had  then  and  there  immediately  before  directed  the  said  A.  B.  to  boil, 
in  order  to  make  a  certain  liquor  called  tea  for  his  own  drinking; 
and  she,  the  said  A.  B.,  did  then  and  there  knowingly,  willfully,  and 
maliciously  boil  the  said  corrosive  mercury  sublimate  in  the  said  wa- 
ter, and  the  said  water,  in  which  the  said  corrosive  mercury  sublimate 
was  so  boiled,  as  aforesaid,  did  immediately  afterwards,  to  wit,  on, 
etc.,  aforesaid,  there  delivered  to  the  said  C.  D.,  to  use  for  the  mak- 
ing of  the  said  liquor  called  tea;  and  the  said  C.  D.,  not  knowing 
the  said  corrosive  mercury  sublimate  to  have  been  in  the  said  water, 
did  use  the  same  in  making  the  said  liquor  called  tea,  and  did  drink 
a  quantity  of  the  same  made  with  the  said  water,  wherein  the  said 
corrosive  mercury  sublimate  was  so  boiled,  as  aforesaid,  whereby  the 
said  C.  D.  became  and  was  grievously  and  violently  distempered  and 
injured  in  his  body,  and  in  extreme  danger  of  losing  his  life,  to  the 
great  damage  of  the  said  C.  D.,  to  the  evil  example  of  all  others  in 
the  like  case  offending,  and  against  the  peace,  etc. 

Indictment  for  an  Assault  and  Battery. 

The  jurors,  etc.,  that  A.  B.,  etc.,  on,  etc.,  with  force  and  arms,  at, 
etc.,  in  and  upon  one  C.  D.,  in  the  peace  of  God  and  of  the  state  then 
and  there  being,  did  make  an  assault,  and  him,  the  said  C.  D.,  then 
and  there  did  beat,  bruise,  wound,  and  ill  treat,  so  that  his  life  was 


FORMS   OF    INDICTMENTS.  413 

greatly  despaired  of,  and  other  wronp^s  to  the  said  C.  D.  tlicn  and 
there  did,  to  the  great  damage  of  the  said  C.  D.,  and  against  tlie 
peace,  etc. 

Indictment  for  Rape. 

The  jurors,  etc.,  that  A.  B.,  etc,  not  having  the  fear  of  God  before 
his  eyes,  but  being  moved  and  seduced  by  the  instigations  of  the  devil, 
on,  etc.,  with  force  and  arms,  at,  etc.,  in  and  upon  one  C.  D.,  spinster, 
in  the  peace  of  God  and  of  the  state  then  and  there  being,  violently 
and  feloniously  did  make  an  assault,  and  her,  the  said  C.  D.,  against 
the  will  of  her,  the  said  C.  D.,  then  and  there  feloniously  did  ravish 
and  carnally  know,  against  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  etc. 

Indictment  for  Robbery. 

The  jurors,  etc.,  that  A.  B.,  etc.,  on,  etc.,  with  force  and  arms  at, 
etc.,  in  and  upon  one  C.  D.,  in  the  peace  of  God  and  of  the  state  then 
and  there  being,  feloniously  did  make  an  assault,  and  him,  the  said 
C.  D.,  in  bodily  fear  and  danger  of  his  life,  then  and  there  felonious- 
ly did  put,  and  one  gold  watch,  of  the  value  of  fifty  dollars,  of  the 
goods  and  chattels  of  him,  the  said  C.  D.,  from  the  person,  and  against 
the  will  of  the  said  C.  D.  then  and  there  feloniously  and  violently 
did  steal,  take,  and  carry  away,  against  the  peace,  etc. 

Indictment  for  Larceny. 

The  jurors,  etc.,  that  A.  B.,  etc.,  on,  etc.,  widi  force  and  arms,  at, 
etc.,  aforesaid,  one  silver  spoon,  of  the  value  of  one  dollar,  of  the 
goods  and  chattels  of  one  C.  D.,  two  brass  candlesticks,  of  the  value 
of  three  dollars,  and  two  linen  shirts,  of  the  value  of  five  dollars,  of 
the  goods  and  chattels  of  E.  F.,  then  and  there  being  found,  feloniously 
did  steal,  take,  and  carry  away,  against  the  peace,  etc. 

Indictment  for  Embezdcment. 

The  jurors,  etc.,  that  A.  B.,  etc.,  on,  etc.,  at,  etc.,  was  clerk  to  C. 
D.,  etc.,  and  employed  and  entrusted  by  the  said  C.  D.  to  receive  money 
for  him,  and  being  such  clerk  so  employed  and  entrusted  as  afore- 
said, then  and  there,  by  virtue  of  such  employment  and  entrustment 
as  aforesaid,  he,  the  said  A.  B.,  did  receive  and  take  into  his  posses- 
sion a  certain  sum  of  money,  to  wit,  the  sum  of  ten  dollars,  for  and 
on  the  account  of  the  said  C.  D.,  his  said  master  and  employer,  and 
having  so  received  and  taken  into  his  possession  the  said  sum  of  mon- 
ey, for  and  on  the  account  of  his  master  and  employer,  he,  the  said 
A.'  B.,  then  and  there,  with  force  and  arms,  fraudulently  and  feloni- 
ously- did  embezzle  and  secrete  part  of  the  said  sum  of  money,  to  wit, 

2  If  a  felouy. 


414  APPENDIX. 

the  sum  of  four  dollars.  And  so  the  jurors  aforesaid,  do  say  that  the 
said  A.  B.  did  then  and  there,  in  manner  and  form  aforesaid,  feloni- 
ously steal,  take,  and  carry  away  from  the  said  C.  D.,  his  said  master 
and  employer,  the  said  sum  of  four  dollars  of  the  monies  of  the  said 
C.  D.,  for  whose  use,  and  on  whose  account,  the  same  was  delivered 
to  and  taken  into  the  possession  of  him  the  said  A.  B.,  being  such 
clerk  so  employed  and  entrusted  as  aforesaid,  against  the  form  of  the 
statute,  etc. 

Indictment  for  Burglary. 

The  jurors,  etc.,  that  A.  B.,  etc.,  on,  etc.,  about  the  hour  of  one  in 
the  night  of  the  same  day,  with  force  and  arms,  at,  etc.,  the  dwelling- 
house  of  C.  D.,  there  situate,  feloniously  and  burglariously  did  break 
and  enter  with  intent  the  goods  and  chattels  of  the  said  C.  D.,  in  the 
saidl  dwelling  house  then  and  there  being,  then  and  there  feloniously 
and  burglariously  to  steal,  take,  and  carry  away,  and  then  and  there, 
with  force  and  arms,  one  silver  tankard,  of  the  value  of  twenty-five 
dollars,  of  the  goods  and  chattels  of  the  said  C.  D.,  in  the  same  dwell- 
ing house  then  and  there  being  found,  then  and  there  feloniously  and 
burglariously  did  steal,  take,  and  carry  away,  against  the  peace,  etc. 

Indictment  for  Obtaining  Property  by  False  Pretense. 

The  jurors,  etc.,  that  A,  B.,  etc.,  on,  etc.,  with  force  and  arms,  un- 
lawfully, knowingly,  designedly,  did  falsely  pretend  to  one  C.  D.,  then 
being  one  of  the  overseers  of  the  poor  of  the  county  aforesaid,  that 
a  certain  female  child,  which  he,  the  said  A.  B.,  had  with  him,  be- 
longed to  the  said  county   (meaning  that  the  said  female  child  was 

a  pauper  of  and  belonging  to  the  said  county  of  ),  and 

that  she  was  born  at  W.,  in  the  same  county,  and  that  he,  the  said 
A.  B.,  had  married  the  said  child's  mother,  and  that  she  had  lived  with 
him  three  years,  and  then  died  (meaning  that  he  the  said  A.  B.  had 
been  married  to  the  mother  of  the  said  female  child,  and  that  the  moth- 
er of  the  said  female  child  had  cohabited  and  lived  with  him,  the 
said  A.  B.,  three  years  after  such  marriage,  and  then  died),  and  that 
his  family  was  very  large,  and  that  he  was  not  able  to  support  the  said 
child  without  some  relief  from  the  said  county,  by  means  of  which 
said  false  pretenses  he,  the  said  A.  B.,  did  then  and  there  unlawfully, 
knowingly,  and  designedly  obtain,  acquire,  and  get  into  his  hands  and 
possession  of  and  from  the  said  C.  D.  three  dollars  of  the  money  of 
the  said  C.  D.,  with  intention  then  and  there  to  cheat  and  defraud 
him  of  the  same,  whereas  in  truth  and  in  fact  the  said  female  was  not 
a  pauper  of  and  belonging  to  the  said  county,  nor  was  she  born  in  the 
said  county,  and  whereas  in  truth  and  in  fact  the  said  A.  B.  had  not 
been  married  to  the  said  child's  mother,  nor  had  she  lived  with  him 
three  years  and  then  died,  to  the  great  damage  and  deceit  of  the  said 
C.  D.,  to  the  e-vii  example,  etc.,  against  the  form  of  the  statute,  etc. 


FORMS   OF   INDICTMENTS.  415 

Indictiiioit  for  a  Libel  at  CoiiDiion  Laiu. 

The  jurors,  etc..  that  A.  B.,  etc.,  being  a  person  of  an  evil,  wicked, 
and  mahcious  mind  and  disposition,  and  unlawfully,  wickedly,  and  ma- 
liciously devising,  contriving,  and  intending,  as  much  as  in  him  lav.  to 
scandalise,  vilify,  and  defame  one  C.  D.,  and  to  bring  him  into  public 
scandal,  infamy,  and  disgrace,  and  to  injure,  prejudice,  and  aggrieve 
him,  the  said  C.  D.,  on,  etc.,  with  force  and  arms,  at,  etc.,  aforesaid,  of 
his  great  hatred,  malice,  and  ill  will  towards  the  said  C.  D.,  unlawfully 
and  maliciously  did  compose  and  publish,  and  cause  and  procure  to  be 
composed  and  published,  a  certain  false,  scandalous,  malicious,  and  de- 
famatory libel  of  and  concerning  the  said  C.  D.,  containing  therein, 
amongst  other  things,  the  false,  scandalous,  malicious,  defamatory, 
and  libelous  words  and  matter  following,  of  and  concerning  the  said  C. 
D. ;  that  is  to  say,  [here  state  the  libelous  matter  with  innuendoes]  ; 
which  said  false,  scandalous,  malicious,  and  defamatory  libel  he,  the 
said  A.  B.,  afterwards,  to  wit,  on,  etc.,  aforesaid,  at,  etc.,  aforesaid,  un- 
lawfully, wickedly  and  maliciously  did  send,  and  cause  to  be  sent,  t<> 
one  E.  F.,  in  the  form  of  a  letter  addressed  to  the  said  E.  F.  and  did 
thereby  then  and  there  unlawfully,  wickedly,  and  maliciously  publish, 
and  cause  to  be  published,  the  said  libel,  to  the  great  damage,  scandal, 
infamy,  and  disgrace  of  the  said  C.  D.,  to  the  evil  and  pernicious  ex- 
ample of  all  others  in  the  like  case  ofifending,  and  against  the  peace,  etc. 

Indictment  for  Forgery. 

The  jurors,  etc.,  that  A.  B.,  etc.,  on,  etc.,  wuth  force  and  arms.  at. 
etc.,  aforesaid,  feloniously,^  did  falsely  make,  forge,  and  counterfeit 
a  certain  promissory  note,  in  the  words,  letters,  and  figures  follow- 
ing, that  is  to  say  [here  set  out  the  note  verbatim],  with  intent  to 
defraud  one  C.  D.,  against  the  peace,  etc. 

Indictment  for  Arson. 

The  jurors,  etc.,  that  A.  B.,  etc.,  not  having  the  fear  of  God  before 
his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the  devil, 
on,  etc.,  with  force  and  arms,  at,  etc.,  aforesaid,  a  certain  house  of 
one  C.  D.,  there  situate,  feloniously,  willfully,  and  maliciously  did 
set  fire  to,  and  the  same  house  then  and  there,  by  such  firing  as  afore- 
said, feloniously,  willfully,  and  maliciously  did  burn  and  consume, 
against  the  peace,  etc. 

Indictment  for  Conspiracy. 

The  jurors,  etc.,  that  A.  B.,  etc.,  C.  D.,  etc.,  E.  F.,  etc..  on.  etc.. 
being  workmen  and  journeymen  in  the  art,  mystery,  and  manual  oc- 
cupation of  wheelwrights  and  not  being  content  to  work  and  labor 

8  TMiere  it  is  a  felony. 


416  ^  APPENDIX. 

in  that. art  and  mystery  by  the  usual  number  of  hours  in  each  day, 
and  at  the  usual  rates  and  prices  for  which  they  and  other  workmen 
and  journeymen  were  wont  and  accustomed  to  work,  but  falsely  and 
fraudulently  conspiring  and  combining  unjustly  and  oppressively  to 
increase  and  augment  the  wages  of  themselves  and  other  workmen 
and  journeymen  in  the  said  art,  and  unjustly  to  exact  and  extort  great 
sums  of  money  for  their  labor  and  hire  in  their  said  art,  mystery,  and 
manual  occupation  from  their  masters  who  employ  them  therein,  on 
the  same  day  and  year,  at,  etc.,  aforesaid,  together  with  divers  other 
workmen  and  journeymen  in  the  same  art,  mystery,  and  manual  oc- 
cupation, whose  names  to  the  jurors  aforesaid  are  as  yet  unknown, 
unlawfully  did  assemble  and  meet  together,  and,  so  being  assembled 
and  met,  did  then  and  there  unjustly  and  corruptly  conspire,  combine, 
confederate,  and  agree  among  themselves  that  none  of  the  said  con- 
spirators after  the  same  day  of  would 

Vv^ork  at  any  lower  or  lesser  rate  than  one  dollar  for  hewing  of  every 
hundred  spokes  for  wheels,  and  two  dollars  for  making  of  every 
pair  of  hinder  wheels  for  or  on  account  of  any  master  or  employ- 
er whatsoever  in  the  said  art,  mystery,  and  occupation,  and  also  that 
none  of  the  said  conspirators  would  work  day  work,  or  labor  any 
longer  than  from  the  hour  of  six  in  the  morning  till  the  hour  of  seven 
in  the  evening  in  each  day,  from  thenceforth,  to  the  great  damage  and 
oppression  not  only  of  their  masters  employing  them  in  the  said  art, 
mystery,  and  manual  occupation,  but  also  of  divers  other  persons,  to 
the  evil  example,  etc.,  and  against  the  peace,  etc. 

Indictment  for  Bigamy. 

The  jurors,  etc.,  that  A.  B.,  etc.,  on,  etc.,  at,  etc.,  did  marry  one 
C.  D.,  spinster,  and  the  said  C.  D.  then  and  there  had  for  his  wife, 
and  that  the  said  A.  B.  afterwards,  to  wit,  on,  etc.,  with  force  and 
arms,  at,  etc.,  aforesaid,  feloniously  did  marry  and  take  to  w'de  one 
E.  F.,  widow,  and  to  the  said  E.  F.  was  then  and  there  married,  the 
said  C.  D.,  his  former  wife,  being  then  and  there  living  and  in  full 
life,  against  the  peace,  etc. 


INDEX 


[the  figures  refeu  to  pages] 


ABATEMENT, 

matters  pleadahlo  in.     Carver.  3G0. 

ACCESSARY. 

how  charged  in  indictment.     Ilatoliett.  101.  ^(^2  n. ;    Thompson.  ItV]. 
ADDITION. 

necessity  for  in  indictment.     Anon..  l."2:    Anun..    l."2;    Fiisse.   ]."L':    .Mr 
Dowoll,  152. 

omission  to  state,  when  cured.     153  n. 

statute  of.     McDowell,  152,  153  n. 

AD.TOT'RNIMENT, 

of  trial,  jury  durins?.     Stone,  258. 

ALLOCUTION. 

necc'ssity  for.     Anon.,  172 ;    :McCue,  306. 

AMENDMENT, 

of  indictment.     Odington.  1G7;    Anon..   lOS:    .Xii.m..   ^(^R■.    i;.i<lU'y,   1i;:> 

of  information.    Wilkes.  168. 

of  verdict.    Wilson.  369. 

of  sentence.     Catterall.  307 ;    Foster,  370. 

of  judgment  entrj'.     Bemis,  372  n. 

APPEAL, 

as  a  method  of  prosecution.    Hale.  31. 
as  a  means  of  review.     Ilornberger,  385. 

APPEARANCE, 

by  attorney.     Tanner,  231. 
see  Presence. 

ARRAIGNMENT. 

what  is.    Hale.  171. 

necessity  for.     Anon.,  172. 

waiver  of.     Hoskins,  173  ;    Hack,  174. 

ARREST. 

definition  of.     Dalton.  43. 

what  constitutes.     Rnssen,  43;    Nugent.  44;    Grosse,  43  n. 

right  of  private  person  to  arrest.    B radon,  4'};    Carey,  45 ;   IIolli'V,  45  n. 

46  n. ;    Taylor,  48 ;    Rice,  53. 
formalities  in  making.     Carey,  45;    Taylor,  4S;    Mackalley,  50;    Ri.e.  .".: 
when  warrant  necessary.    Carey.  45.  46  n. :    Taylor.  48. 
what  warrant  must  show.     West,  56  n. ;    Brady,  5(5  n. 
who  may  execute  warrant  of.     Keeper,  46  n. ;    Rice.  53. 
of  fugitive  in  another  jurisdiction.     Keeper,  46  n. ;    Taylor.  -IS. 
wlien  magistrate  may.     Windham,  72;    lilodgett.  72:    IvinilMTJey.  77. 
time  of  making.     Mackalley.  50;    Anon..  ."2;    Anun..  5.3,  5:5  n. 
overcoming  resistance  to.     Ric-e,  53. 

treatment  of  person  under.     Leigh.  57;    Thalcher,  50  n. ;    Scavage.  74. 
of  judgment. 

causes  for.  in  general.     Carver.  ::•'.(•;    Ryan.  364. 

pregnancy  as  cause  for.    Arden.  358. 

insanity  as  cause  for.     Vann.  3.")!);    Brinyea,  3(;<»  n. 

defect  in  composition  of  grand  jury  as  cause  for.     Carver,  360. 

Mik.Cu.Pr.— 27  (417) 


418  INDEX. 

[The  figures  refer  to  pages.] 

ARREST— Contiuued. 

defect  in  indictment  as  cause  for.     Holley.  302. 

failure  to  plead,  as  cause  for.    Lacefield.  ''K^. 

defect  in  verdict,  as  cause  for.     Lohmdn.  '.\U~k 

when  motion  in.  must  be  made.     Robinson,  o(>."). 

verity  of  record,  in  motion  in.     McKennan,  113. 
AUTREFOIS  ACQUIT. 

as  bar  to  second  prosecution.     Anon.,  ISS. 

when  to  be  pleaded.     Faulk.  199. 

issue  of.  how  tried.    Faulk,  199. 

proof  of.     Faulk,  199. 

form  of  plea  of.    Faulk,  199. 

AUTREFOIS  ATTAINT. 

when  a  bar  to  second  prosecution.     Conuell.  372  n, 

AUTREFOIS  CONVICT. 

as  bar  to  second  prosecution.     Wetherel,  187,  188  n. ;    Benham.  ISO. 


BAIL, 

effect  of  A'erdict  of  inquest  on  right  to.     Ilalton.  70. 
what  offenses  ax'e  bailable.     Dalton.  76:    Judd,  70.  70  n. 
illne.ss  as  reason  for.     Wyndham,  78. 

when  offense  committed  in  foreign  .iurisdiction.     Kimbcrley,  77. 
extent  of  undertaking  of  surety.     Ridpath,  SO,  81  n. ;    Gresham,  82 ;    De- 
vine.  S3 ;    Graves,  84. 


i 


BENEFIT  OF  CLERGY, 

allowance  of.     SutclifiCe,  358. 


CERTIORARI, 

when  available.     Inhabitants,  379 ;    Long.  379. 

CHALLENGE  OF  .JURORS. 

in  general.     Britton,  213 ;    Chittij.  213. 

opinion  of  guilt  as  ground  for.     Burr,  216 :    Knapp.  223  n. 

prejudice  as  ground  for.     Lester,  219;    Cavitt,  220;    Helm.  221  ;    Swigart, 

222. 
scruples  as  ground  for.     Webster,  223  n. 
waiver  of.     Seaborn,  90.  91  n. 
see  Jury. 

CONFESSIONS, 

as  proof  of  corpus  delicti.     Harris,  297. 

wiien  admi.ssible.     Taylor,  315. 

admission  of  other  evidence  obtained  through.     Warickshall,  310. 

CONTINUANCE, 

of  trial.     Stanley.  225;    Jailer,  227;    Buckley,  228. 

CONVICTION, 

of  lesser  offense.     Hunter.  333 ;    Davidson,  333. 
of  different  offense.     Green.  330 ;    Heaps,  337. 
of  joint  defendants.     Klein.  337;    Turner,  338. 

CORPUS  DELICTI, 

necessity  for  proof  of.     VhUtii.  280. 

how  proved.     Chittij,  280;    Palmer,  293;    Burton,  295;    Harris.  297. 

COUNSEL, 

right  of  accused  to.    Ha ickius,  230;   Withipole,  231 ;   Jeff es.  231 ;   Thomas, 

282. 
assignment  of.     Fitzharrls.  172. 
remarks  of,  during  trial.     McGahey,  256. 
comment  of,  on  refusal  to  testify.     Courtney,  282 ;    Cotton,  284. 


INDEX.  419 

[The  figures  refer  to  pages.] 
COUNTS. 

charging  crime  in.     Chitty.  1G5. 

whon  indiotnieiit  may  contain  several.     Carey.  .''..".0. 

effect  of  defective  counts  on  verdict.     Faderman.   177. 
CUSTODY, 

of  defendant  between  conviction  and  seiitonce.     ciiilti/.  :wr,. 


DEMURRER. 

effect  of  overruling.     ITume,  110. 

DISCONTINUANCE, 

right  of  accused  to  object  to.     Smith.  ISl. 

DISJUNCTIVE   AVERMENTS, 
in  indictment.    106  n. 

DUPLICITY, 

what   constitutes.      Smith.   10.";    Newton,   lOG;    T\vitchell,   107 ;    Siiroui^e. 
107;    Holmes,  107  n. ;    Fuller.  109. 


ELECTION. 

putting  prosecutor  to.     Davis.  1S4. 

ERROR. 

effect  of.  in  judgment.     McDonald,  382. 
writ  of. 

when  available.     Inhabitants,  379;    Long.  379;    T;\fr.  3Sn. 

what  considered  on.     .Toan.  384;    Gaffney.  :5S4  n. ;    Taylor,  38G. 

right  of  state  to.     Sanges,  391. 
coram  nobis. 

when  available.    Toney,  389. 

EVIDENCE. 

effect  of  grand  jury  receiving  incompetent.    Boone,  &S.  90  n. 

circumstantial,  in  ]n•^n^f  of  corpus  delicti.     Chitty,  280;    Itiirton,  293. 

weight  of  defendant's.    Cotton.  284. 

dying  declarations  as.     Railing,  .308. 

of  character.     Basye,  313 ;    Murphy.  315  n. 

EXECUTION, 

assigning  new  time  for.     Kitchens,  ."77. 
pregnancy  as  cause  for  stay  of.    o.jO  u. 

EX  POST  FACTO  LAW, 
what  is.    Duffy,  40. 

EXTRADITION, 

between  a  state  and  a  foreign  country.     Ilnlnn's.  iX)  n. 
in  the  United  States.     Dennison.  OU ;    MoUr,  G," j ;    Roberts.  \\'  n. ;    Orm*- 
las,  67  n. ;    Hope,  68. 


HABEAS  CORPUS, 

function  of  writ.     Mohr,  63;    Burden,  373;    Toney.  .389. 


IDEM  SONANS. 

m  name.     Foster,  150;    Davis,  l.ll. 

IMPRISONMENT, 

whether  bar  to  trial  for  another  crime.     Counell.  372  n. 


INDICTMENT, 

nature  of.     Blackstone.  29. 
necessity  for.    Anderson,  31.  ;J3  n. 


420  INDEX. 

[The  figures  refer  to  pages.] 

I NDICTMEXT— Continued, 
caption  of. 

nature  of.     Hair,  93;    Stone.  04  n. :    Bennett.  04. 

form  of.     Bennett,  94. 

necessity  for.     Marion,  94  n. ;    Wasilen,  94  n. ;    Goodloe,  O-j  n. 

amendment  of.     Stone,  04  n. 
commencement  of. 

form  of.     Bennett,  04;    Hale,  US;    AxJihoIil,  OS. 
conclusion  of. 

form  of.     Hair.  98;    HatclHii-t.  98;    Clerk,  104;    Anon.,   104;    Anon., 
104;    Anon.,  105;    Ilolley.  302. 

as  aid  to  imperfect  allegations  in.     Keerl,  122. 
language  of.     Holr.  97,  97  n. ;    Gilliert,  102. 
use  of  abbreviations  in.     Hale.  97. 
use  of  tigxu'es  in.    98  n. 

requisites  of.  in  general.     Mirror.  03;    Hale.  OS;    Tate.  118. 
requisites  of,  for  homicide. 

in  general.     Hale.  12.")  u. 

description  of  wound.     Clerk.  121;    Conley.  123;    Haydon.  12G  n. 

averment  of  death  as  result  of  wound.     Clerk,  121 ;    Keerl.  122. 

averment  of  cause  of  wounds.     Conley,  123. 
requisites  of,  for  attempt.     Doran.  13,^. 
necessity  for  certainty  in.     Mirror.  93;    Hale,  97;    Bori'ough,  103;    Ilobe, 

103;    Smith,  105;    Anon.,  130;    Thompson.  163;    Harris,  318. 
necessity  that  averments  be  ix)sitive.     Whitehead.  103. 
averment  of  facts  necessary  to  constitute  crime.    Tate.  118;    Stride.  118; 
Lowr.   121  ;    Clerk,   121 ;     Keerl.   122 ;     Conley,   12;^ ;     Pearce.    120 ; 
Haddontield,  127;    Harman,   128;    Hersey,   129;    Trigg,   1.33. 

when  crime  is  one  of  omission.     Haddontield,  127. 
averment   of  place  of   offense.     Hume.   110;    Anon.,   13G;     Cotton.    137, 
137  n. ;    Johnson,  138;    Auburn.  140. 

repetition  of.     138  n. ;    Kennedy.  143. 
averment  of  time  of  offense.     Dandy,  112;    .Tohnson,  138,  138  n. ;    Anon., 
138;    Mason,  130;    Mollett,  139;    Beaton,  140;    Auburn,  140;    Itaw- 
son,  141  n. ;    Smith.  141. 

repetition  of.     Kennedy.  143. 
description  of  persons  in,  see  Name, 
description  of  proiyerty  in,  see  Property, 
necessity  for  alleging  intent.     Hersey,  120. 

necessity  for  alleging  knowledge.     Boynton,  131 ;    Bchee,  134  n. ;    Thomp- 
son, 163. 
necessity  for  alleging  malice.     134  n. 
necessity  for  alleging  fal.'ity.  135  n. 
necesvsity  for  alleging  act  unlawful.     Hodges.  133. 
use  of  words  of  art  in.     Clerk.  121.  121  n..  122  n. ;    Hodges,  1.33. 
surplusage  in.     Morris,  114 ;    Fulford.  114 ;    Edwards,  101 ;    Buckley,  148. 
alleging  facts  as  unknown.     Enson.  .322. 
charging  in  words  of  statute.     Doran.  135 ;    Lloyd.  158. 
effect  on.  of  misspelling.     Hale,  97 ;    Evans,  99 ;    Colly,  100,  101  n. ;    Fos- 
ter. 150. 
effect  on,  of  mistake  in  averment  of  facts.     Evans,  99. 
eftect  on.  of  omissions  in.     Edwards,  101 ;    Fusse,  152. 
supplying  omissions  in.     Auburn.  140. 

effect  on,  of  dis<;iualification  of  grand  .iuror.     Seaborn,  00. 
effect  on,    of  irregularity   in   proceedings   of   grand   jury.      Kussell,    SS ; 

Boone,  &S,  90  n. 
what  parts  of  must  be  proved.     Chiity.  280. 
defects  in,  how  objected  to.     Carver.  360. 
objections  to,  when  to  be  made.    97  n.,  98  n. 
right  of  accused  to  copy  of.     Fitzharris,  172. 
reading,  to  accused.     173  n. 
joinder  in,  see  Joinder, 
amendment  of,  see  Amendment. 


INDEX.  421 

[The  figures  refer  to  pages.] 

INDICTMENT— 'OoDtinued. 

forms  of. 

for  murder,  411. 

manslaugbler,  412. 

attempt,  412. 

assault  and  battery.  -112. 

rape,  413. 

robbery,  41.3. 

larceny,  41.'{. 

embezzlement.  41.3. 

burglary,  414. 

false  pretense,  414. 

libel.  41.J. 

forgery,  41.i. 

ar.son,  415. 

conspiracy,  415. 

bigamy,  41(5. 

IXFOU.M.VTION. 

nature  of.     BlacKstoiic,  20;    Kelni.  r^4. 

who  sbould  tile.     Griftitbs,  :V.i ;    Kelni.  .".4,  36  n, 

restrictions  on  prosecution  by.     .Vnderson.  ol,  oG  u. 

INITIALS,  see  Name. 

INSANITY, 

Iturdeui  of  proof  in  defense  of.  see  Proof, 
procedure  on  plea  of,  after  verdict,     ^■ann,  ."..">9. 
as  cause  for  arrest  of  judgment.     Vann.  oo'J. 


.JEOPARDY.  FORMER, 

wben,  attaches.    Brition.  1S.5;    Stauuford,  185;   .Tones,  1S<'. :    Tlnlc.  187  n. : 

Kinloch,  187  n. ;    Witbipole,  188;    Benbam,  189. 
identity  of  offense.     Staunford,  185;    Jone.s,  18(»;    lienbam.  is;t;    Cbanip- 
uey,  193;    Roberts,  194;    Rosenl)aum,  190:    Morey,  197. 
proof  of.     Anon.,  188 ;    Lanibard.  188  n. ;    Cbampney,  193. 
whether,  on  prosecution  by  appeal.    Wetherel,  187. 

whether,  on  prosecution  in  a  foreign  juri.'^diction.    Ilutchinsdu.  18t;,  180  n. 
whether,  on  prosecution  by  court-martial.     186  n. 
whether,  when  error  in  process.     Fitzlicrhert,  180. 
whether,  when  error  in  sentence.     McDonald.  382. 
whether,  on  arrest  of  judgment.     Ilolley.  .302. 
misconduct  of  prisoner  as  affecting.     Jane,  187 ;    lluh\  187  n. 
illness  of  juror  as  affecting.     187  u. 
when  to  be  pleaded.    Faulk,  199. 

JOINDER. 

of  defendants. 

for  nonrepair  of  road.     Anon..  103. 

for  perjury.     Phillips,  104. 

for  blasphemy.     Tawny,  104. 

for  riot.     Sudbury,  105. 
of  offenses. 

when  allowed.     Young,  100;    Ilenwood,  107. 

JUDGE, 

presence  of,  at  trial.     Blackman,  244  ;    Rowe.  24.j. 

as  a  witness.     245  n. 

misconduct  of.     Peebles,  255;    Duestrow,  2.55. 

duty  of,  to  determine  law.     Beard,  208;    Blaker.  208  n. ;    M.Miuuis.  270. 


JUDGMENT, 

necessity  for.  Driggers,  .308. 
requisites  of.  Dawkins,  339. 
responsiveness  of,  to  verdict.    Kidd,  309. 


422  INDEX. 

[The  figures  refer  to  pages.] 

JUDGMENT— Continiietl, 

uncertainty  of.     Superintendent,  405. 

suspension  of.     Fults,  375. 

effect  of  reversal  of.    Taff,  380 ;    McDonald,  382. 

effect  of.  on  void  verdict.     Dawkins,  330. 

power  of  appellate  court  to  pronounce.     McDonald,  382. 

what,  on  overruling  demurrer.     Faderman,  177. 

JURISDICTION, 

of  crime  committed  in  foreign  state.     Kunzniann.  2;    Cutsball.  0. 

of  crime  committed  on  high  sea.     Coke,  1,  1  n. 

of  acts  done  in  one  state  taking  effect  in  another.     Simpson,  11,  14  u. 

of  federal  and  state  courts.     12  n.,  14  n. 

in  homicide.     Coke,  1 ;    Simpson,  11,  12  n. 

in  bigamy.     Cutsball.  G. 

in  attempt.     Simpson,  11. 

in  larceny.     Ilaskins,  17. 

JUROR, 

as  a  witness.     Bennett,  259. 

misconduct  of.     Cullen,  260;    McKahan.  2(30;    Jongrass,  2G1  ;    Cheek,  262 ; 
McCurdy,  263 ;    McCoy,  263  n. ;    Priori,  265  n. 

JURY,  CxRAND. 

how  constituted.    Blackstone,  85 ;    Seaborn,  90. 

mode  of  selection.     Blackstone,  85. 

qualifications  for.     Blackstone,  85 ;    Mirror,  93. 

function  of.     Blackstone.  85. 

misconduct  of.     Anon.,  86. 

right  of  member  of,  to  testify  as  to  evidence  before.     Wood,  86. 

finding  true  bill  by,  without  evidence.     Russell.  88. 

conipelling  defendant  to  testify  before.     Boone,  88. 

objection  to,  when  to  be  taken.     Seaborn,  90 ;    Carver.  360. 

JURY,  PETIT, 

composition  of.     Collins,  203. 
qualifications  of  members  of.     Coke,  212; 

220:    Helm,  221;    Swigart,  222. 
right  to  trial  by.     Pollock  d  Maitland,  202; 
Byers,  205. 
of  the  vicinage.     Coke,  1;    Cutsball.  6:    Hewitt.  26. 
waiver  of  trial  by.    Collins.  203  ;    Dacres,  208 ;   Woodling.  209  ;    Coke.  212. 
separation  of.    Brittoii,  258;    258  n. 
swearing  of.     Britton,  2.58. 
communication  with.     Britton,  258 ;    McCurdy,  203 ;    Flack,  264 ;    Liuzey, 

265. 
conduct  of.    Ilarebottle,  259  ;    Cullen,  260. 
reirapaneling.     Dawkins,  330. 
as  judges  of  law.    Beard,  268;    McManus,  270. 


f 


Burr,  210 ;  Lester 
Collins,  203; 


219;  Cavitt. 
Thayer,  203; 


LIMITATION,  STATUTE  OF, 
nature  of.     Duffy,  40. 
to  what  crimes  applicable.    42  n. 

in  continuing  offenses.    Dry  Fork  R.  Co.  36 ;    Langdon,  37. 
in  homicide.    39  u. 
in  false  pretense.     39  n. 
in  conspiracy.     39  n. 
in  forgery.     Duffy,  40. 
increasing  time  of  limitation.     Duffy,  40. 
how  pleaded.    42  n. 
when  waived.    42  n. 
applicability  of,  to  fugitive.     42  n. 


IXDKX.  423 

[The  figures  refer  to  pages.] 

MISNOMER, 

how  taken  aclvautase  of.     140  n. 
whether  cured  by  verdict.     149  n. 
plea  of,  see  Plea. 

MAGISTRATE, 

jurisdiction  of.     Kiniberley.   77. 
examination   l)y.     Scavajie,   74;    Thari:''.   74. 
trial  by.     IJepler,  7;j. 

coiumituient  by.     Judd,   7U ;    Wyiidliaui,  7S. 
see,  also.  Arrest. 

MISJOINDER, 

when  cured.     Young.  IGG. 

MITTIMUS. 

requisites  of.     Rohe.  376. 
uncertainty  of.     Superintendent.  40.". 

MOTION,  see  Arrest  of  Judgment ;    New  Trial;    Quashing. 

MUTE,  STANDING. 

what  amounts  to.  Eale,  171. 
proceedings  when.  HaU,  171. 
judgment  In  case  of.    Uale,  171. 


NAME, 

of  person  indicted.     Memorandum,  14G;    .  140;    Barne.-Jciolta.  14.: 

Newman.  148. 
of  person  injured.     Buckley,  14S;   Biss.  IHO;   Laiiihanl.  I'r,. 
when  a  corporation  or  partnersbiji.     Bogart,  137. 
initial  as  part  of.     Buckley,  148,  148  n. 
junior  and  senior,  as  part  of.     148  n. 
when  idem  sonans.     Foster,  1-50;    Davis,  ICil. 
effect  of  misstatement  of.     14!)  n. 
effect  of  misspelling  of.     Foster,  ir>0. 

NEW  TRIAL. 

power   of   coiu-t   to   grant.      Inhabitants,   ."i^O ;     Gray,   ool  ;     Green,   Jol 

Stephens,  355  n. 
for  what  causes  granted.     Green,  351 :    Eaves.  3.'G. 
of  one  joint  defendant.     Mawbey,  355  n. 
motion  for.  when  to  l)e  made.     Bepley,  357.  357  n. 
what  considered  on  motion  for.     Ryan,  304. 
motion  in  arrest  as  motion  for.    Carver,  300. 

NIGHT, 

arrest  in  the.    Mackalley,  50. 

NOLLE  PROSEQUI, 

power  to  enter.     Smith.  181. 
as  to  part  of  indictment.     P.ean.  182. 
power  of  court  to  order.     Ilickling.  is:2  n. 
130wer  to  strike  off  entry  of.     Nutting,  182  n. 
as  bar  to  prosecution.     Ridpath,  80. 

NOLO  CONTENDERE, 

effect  of  plea  of.     Ingersoll,  170. 


PARDON.  ^^^    _., 

when  to  be  pleaded.     Anon.,  18 1,  181  u. 
waiver  of.     Wilson,  181  n. 

PARTICULARS,  BILL  OF, 

right  to.    Williams,  114  d.  ;   Enson,  :!i22. 
denial  of,  as  subject  to  review.    Dnulup.  11..  n. 


424  INDEX. 

[The  figures  refer  to  pages.] 

TLEA. 

what.  availaMe  to  acc-used.    Blaclstoue,  170. 
of  guilty,  380  ii. 
of  general  i.ssiie.     42  n. 
of  niisuomer.     Rarnesciotta.  147.  149  u. 
scandalous.     .Teft'es.  231. 

failure  to  enter.    Hale,  171,  172  n. ;   Baker,  173  n. ;    Lacefield,  3G3. 
waiver  of.     Hume.  110;    Hoskiu.s,  173:    Hack.  174. 
as  waiver  of  defects  in  indictment.     Carver,  360. 
see  Nolo  Contendere. 

POLL. 

right  to  poll  jury.     Taylor,  3SG. 

PREGNANCY, 

procedure  on  plea  of.     Arden.  358. 

as  ground  for  arrest  of  judgment.     Arden,  358. 

as  ground  for  stay  of  execution.    359  u. 

PRESENCE  DURING  TRIAL, 

of  defendant.     Brition,  2.30;    Vaughan,   230:    Anon.,   2.32;    Templeman,  ' 

232 ;    Ilopt,  233  ;   Prine,  23G ;   Adams,  238 ;   Thorn,  239 ;   McCue,  3GG. 
of  jury.     Gibson,  328. 

of  counsel.     Hawkins,  230;    Withii)0le,  231;    Jeffes,  231,  232  n. 
of  judge.     Blackman,  244 ;    R'^-e,  245. 

PRESENTIMENT, 

nature  of.     Blaclcstotic,  29. 

PRESUMPTION, 

of  regularity.     Ryan,  3G4. 
of  innocence.     Coffin,  285;    Potter,  292. 
from  refusal  to  testify.     Courtney,  282, 
see,  also.  Record. 

PRINCIPAL. 

how  charged  in  indictment.     Banson,  IGl. 

PROOF, 

of  corpus  delicti,  see  Corpus  Delicti. 

of  identity  of  deceased.     Palmer,  294. 

confession  as.     Harris,  297. 

of  facts  obtained  through  confession.     Warickshall.  31G. 

of  surplusage.    Fulford.  114;    Johnson,  321. 

of  alibi.     Hamilton,  30G. 

when  bill  of  particulars  is  furnished.     Williams,  114  n. ;    Giles.  115  n. 

statute  of  limitations  as  altering.     Duffy,  40. 

burden  of. 

in  general.     Chittu,  280;    Britton,  285;    Coffin,  285. 

in  defense  of  insanity.     Davis,  298:    De  Ranee.  301. 

i;i  defense  of  self-defense.     Legg,  .305;    Padgett,  30G. 

PROPERTY. 

description  of,   in   indictment.     Tate,  118:    ,   128;    Lamhanh   1.53; 

Kettle,   154 :     Forsyth,   155 ;    Johnson,   155  n. ;    Brown,   155  n. ;    Bond^ 

155  n. ;    Bassett,  156 ;    Bogart.  157. 
averment  of  ownership  of,  in  indictment.     Lamhard,  153;    Bogart,  157. 

PUNISHMENT. 

who  to  assess.     Wilson.  369. 
kinds  of.     Lamhard.  398. 
"cruel  and  unusual."     Ketchum,  399. 
indeterminate.     Superintendent,  405. 

QUASHING, 

indictment.     Davis,  184;    Riffe,  184. 


INDEX.  425 

[The  figures  refer  to  pages.] 
REASONABLE  DOUBT, 

what  is.     Coffin,  285. 
duty  to  in.«itrurt  as  to.     Potter.  202. 
evidence  of  character  as  {roiieralinR.     Mnrpliy.  .'^l.'-,  n. 
RECORD, 

wliat  is  the.     Carver.  3fM^:    Taylor.  .'JS(). 

amendment  of.     Bemis.  372  n. 

verity  of.     McKennan,  11:',. 

in-esumption  from'  sileuce  of.     Fiilts,  375;    Taylor,  380. 

REPUGNANCY, 

what  i.'^.     Hume,  110;     Sales.   Ill  ;    Lockw 1.    1 1 1  ;    .M,K,.mikim     11:; 

in  innnaterial  averments.     113  n. 
under  statutes.     113  n. 

RESPONDEAT  OUSTER. 

judgment  of,  on  overruling  demurrer.     Faderman.  177.   177  n. 

SENTENCE, 

when  to  be  pronounced.     Chittj/.  360;    Kitchens.  .■;77. 

presence  of  defendant  at.     McCue,  3r,t). 

indeterminate,   validity  of.     Catterall.  367;     Superind-ndent.  40.'. 

resix»u.siveness  of.  to  verdict.     Wilson.  3G0;    Burden.  ::7.':  ■    T.ifT   ::^-    M-- 

Donald,  382;    Felton,  390. 
effect  of  surplusage  in.     Wil.son,  360  ;    Burden,  .373:    Tafl".  :i.S((. 
on  indictment  containing  several  counts.     Foster,  370;    P.urrell, 
distinction  between  void  and  excessive.     Burden,  373. 
amendment  of.     Catterall,  367;    Foster,  370. 

SUBPOENA. 

to  compel  attendance  of. 
witnesses.     Chitty,  2S0. 

SUNDAY, 

arrest  ou.    Mackalley,  50. 

SURPLUSAGE, 

in  indictment,  see  Indictment, 
in  sentence,  see  Sentence. 


TIME, 

allowance  of,  to  consult  counsel.     Fitzharris,  172. 

TRIAL, 

time  of.     Lam  hard,  223;    Brunsden,  224;    Haas,  224;    St.  SI  Car.  II,  221, 

230  n.    Buckley,  228. 
speedy,  meaning  of.     Stanley,  22."). 
effect  of  postponement  of.     229  n. 
right  to  fair.     Wilcox,  246  ;    Peebles,  2.j5  ;    Duestrow.  2.''m  ;    McCahey.  2.'»'. : 

McKahan,  260;    Vaughan,  264  n. 
right  to  public.     Murray,  248;    Nyhus.  2r>2. 
when  indictment  contains  several  counts.    Carey.  3.';9. 


>  I  — . 


UNKNOWN, 

alleging  facts  as.     Enson,  .322. 
alleging  name  as.    ,  146. 


VALUE, 

avei'uient  of.    Lamlard,  1o4. 


426  INDEX. 

[The  figures  refer  to  pages.] 

VARIANCE, 

between  indictment  and  proof. 

in  name  of  person  injured.     Buckley,  148. 

in  setting  out  writintr.     Dralce,  159. 

in  ownership  of  property.     Wilson,  3G9. 

in  description  of  property.     Harris,  318;    Enson.  322. 

in  offense.     Gorbutt,  318. 

in  instrument  used.     Long,  319;    Wallier,  320;    l^ilkins.  322. 

in  facts.     .Johnson,  321. 

who  determines  whether.     149  n. ;    Davis,  151. 

VENUE. 

when  act  done  in  one  county  takes  effect  in  another.     Robbins,  15,  21   n. 

in  homicide.     C'oAe,  1 ;    Robbins,  15. 

in  larceny.     Haskins.  IT. 

in  burglary.     McGraw.  18  n. 

in  embezzlement.     Rogers,  19. 

in  libel.     Rogers.  19.  21  n. 

in  receiving  stolen  goods.     20  n. 

in  false  pretense.    20  n. 

in  forgery.     21  n. 

in  uttering.    21  n. 

of  accessorial  acts.     Hale,  21 ;    Carlisle,  22 ;    Ellison,  24  n. 

of  crime  done  in  a  county  subsequently  divided.    21  n. 

change  of. 

power  of  court  to  award.     Harris,  24;    Hewitt,  26;    Stanley,  225. 

allegations  necessary  to  secure.    Harris,  24. 

VERDICT, 

kinds  of.     Chitty,  327. 

privy.     Legingham,  328. 

sealed.     Tobin,  331. 

special.     Call,  343:    French,  344. 

unanimity  in.     lirition.  32f; ;    Anon..  326 ;    Gibson,  328. 

procedure  in  rendering.     Chittij,  327;    Gibson,  328;    Longfellow,  331   n. ; 

Tobin,  331. 
presence  of  jurors  at  reception  of.    Gibson,  328. 
finality  of.     Dawkins,  330. 
when  juror  may  dissent  from.     331  n. 
retraction  of.    Gibson.  328. 
responsiveness  of,  to  charge.     Davidson.  333;    Hunter.  333;    Green,  336; 

Heaps,  337 ;    Rowe,  341 ;    French,  344 ;    Morgan.  346 ;    Lohmdn,  365. 
what,  must  show.     Williams.  336 ;    Green,  336,  336  n. ;    Rowe,  341 ;    Call, 

343;    French,  344. 
when  indictment  contains  several  counts.    Carey,  330 ;    Selvester,  340. 
inconsistent.     Burden.  348. 
effect  of  imperfect.     Call,  343. 

methods  of  reaching  agreement  on.     Fitzwater,  348;    Glidewell,  348. 
amendment  of.     Wilson,  309. 
as  cure  for  prior  irregularities.     Carver,  300. 


WAIVER, 

of  defects  in  indictment.    Carver,  300. 
of  jury  trial. 

what  constitutes.    211  n. 

by  counsel.  212  n. 
6f  speedy  trial.  230  n. 
of  presence  of  defendant  during  trial.     Hopt.  233 ;    Prine,   230 ;    Thorn, 

239. 
of  misconduct  of  trial.    Flack,  264. 
of  statute  of  limitation.    42  n. 

see  AiTaignment ;    Plea  ;   Pardon. 


INDEX,  427 

[The  figures  refer  to  pages.] 
WARRANT,  see  Arrest;    Mittimus. 

WITNESS, 

arrest  of.     Anon..  r>;5. 

oath  of.     Russell,  88. 

defendant  as.     Boone.  88;    Courtney,  282;    Cotton,  284. 

exclusion  of.     Vanghan,  230. 

misconduct  of.     2:30  n. 

number  of,  necessary.     Chit  hi.  280. 

securing  attendance  of.     Cliittii.  280. 

whether  to  be  sworn.     Tyndal,  281;    Thomas,  282;    Colcc,  282. 

WORDS, 

when  to  be  set  out  in  indictment.    Lloyd.  158:   Bradlaugh,  l."9  n. ;    Hough- 
ton, 159  n. ;   Brown,  159  n. ;    Drake,  159;   iMarlier,  160,  IGO  n. 


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